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Home > Judgments

A and R (Children), Re [2018] EWHC 2771 (Fam)

Unsuccessful appeal by the mother against a fact finding hearing in private children proceedings, where Baker J provides a useful reminder of the law pertaining to domestic abuse cases, in particular the question of appeals arising from fact finding hearings

The case concerned two boys, A aged 7 and R aged 6 who were the subject of bitterly fought s.8 Children Act proceedings between their parents. The parents had sufficient resources to enable them to fund the litigation, and had been represented by leading counsel throughout the proceedings.

The factual background to the case is voluminous, and there can be no substitution for reading the summary in Baker J's judgment in full, which he took from the 52 page chronology produced by the legal team for the appellant mother.

The mother appealed to Baker J following a fact finding hearing before Miss Recorder Evans. At that hearing, the court had determined five allegations made by the mother, and four on behalf of the father.

The Allegations
The mother's allegations had included:

a. Two allegations of physical assaults by the father on the mother;
b. An allegation of controlling and coercive behaviour on the part of the father, of which four specific instances of this behaviour were cited;
c. An allegation of inappropriate behaviour and lack of boundaries by the father;
d. An allegation that the father had discussed court matters with the children and encouraged them to disparage and distance themselves from the mother and the maternal family.

At the fact finding hearing, Miss Recorder Evans found the first two allegations to be proven on the balance of probabilities, and that the father had therefore assaulted the mother, albeit it with various details of the mother's account being rejected.

The third, fourth and fifth allegations were not found by the Recorder on the balance of probabilities.

The father's cross-allegations had included:

a. Physical harm being perpetrated against the father by the mother (with three particular incidents cited);
b. Emotional behaviour by the mother towards the father (with specific allegations that mother would habitually shout at him and denigrate him in front of the children);
c. Emotional and psychological behaviour by the mother towards the children (in particular, that she had been questioning them and recording them on her iPhone having previously coached the children as to what they should say);
d. 'inappropriate sexual behaviour:
a. On a number of occasions in 2016, the mother had allowed R to fondle her breasts, sometimes over and under her clothing … (b) the mother habitually kisses R on the lips with her tongue in his mouth.'

For the first allegation, the Recorder found one of the three specific incidents to have occurred. No findings were made regarding the father's second allegation. For the third, she similarly found that there was insufficient evidence to justify a finding of conspiracy to fabricate evidence, and the evidence did not come close to the allegation made.

When determining the fourth allegation, in her draft judgment, the Recorder stated: 'I accordingly find that the mother has put her tongue in R's mouth on more than one occasion, albeit fleetingly.' Following a request for clarification by mother's counsel, the Recorder added a further sentence to her judgment, stating, 'No evidence was put before me as to any sexual element of this conduct and I find none to be present.'

The Fact Finding Judgment
In addition to the above findings, the Recorder summarised her impression of the parties and other witnesses who had given evidence before her. Both parties had given evidence and called two nannies each to also provide oral evidence.

The Recorder described the mother as being guarded, observing that she 'often seemed reluctant to provide any detail beyond that set down in her statements and many of her answers appeared to be deliberately vague.' She noted that mother presented the father to the court as being abusive, controlling and domineering and herself as a victim of his behaviour who had learnt not to challenge him too often. The Recorder however observed that, from the evidence she had seen, she did not accept this to be an accurate reflection of the power balance within the relationship. She found the father to be a 'relatively open and frank witness within the context of proceedings which he obvious found both intrusive and exasperating.' She went on to note however that aspects of his evidence had been less than clear, and that she did not 'accept the truth of his version of events in relation to certain important matters.' The Recorder also felt there was some force in the mother's allegation that the father's Scott Schedule was a 'tit for tat' response to the Schedule produced by the mother.

The Recorder reminded herself of the law pertaining to fact finding hearings. She did not, however, expressly address Practice Direction 12J in her judgment.

Grounds of Appeal
Permission to appeal had been granted by Baker J.

The mother appealed on the following grounds:

1. She argued that the Recorder's approach to the fact finding exercise was tainted by material irregularity. In particular, the Recorder's approach was fundamentally flawed and wrong in that she failed to have any, or any proper regard to the guidance in Practice Directions 12J, which the mother argued had not been followed. The Mother argued that the Recorder had failed to make any findings as to the impact of the domestic abuse on the mother and/or the children, and had therefore failed to follow the guidance set out in paragraph 29 of Practice Direction 12J.

2. Second, that the Recorder's analysis of the evidence was deeply flawed and wrong in many respects. It was argued that it was incumbent on the Recorder as part of her analysis to consider the genesis and development of the father's allegations. In particular, that in his first application to the court that father had ticked the box to indicate he had no concerns that the children were at risk of any form of domestic violence. Only after the mother's Scott Schedule was submitted, did the father seek to raise his own allegations.

The Recorder's assessment of the witnesses was also criticized. It was said that she had failed to take into consideration that if the mother had been subjected to domestic abuse over a period of time, the mother would find it difficult to give evidence on that subject, with the father sitting close by. The Recorder had therefore formed an adversely unfair impression of the mother without making allowance for this fact. Further it should not have been open to the Recorder to find the father to be 'relatively open and frank' when she rejected significant parts of the father's evidence where it had differed from the mother's.

It was argued that the recorder's analysis of the evidence had failed to properly weigh the evidence for and against each allegation or to give any or any adequate reason for the conclusions. In particular, it was argued that the Recorder 'failed to consider the fact of the father making allegations of inappropriate sexual behaviour against the mother as part of the mother's case that the father was controlling and abusive of her.'

3. The third ground of appeal was one of unfairness. In other words, that the Recorder had formed an unfairly adverse view of the mother which affected the neutrality of her analysis. It was argued that 'in the case of the mother, the judge resolved an inconsistency by concluding that she was lying or exaggerating, in the case of the father she was often prepared to ignore obvious inconsistencies or inaccuracies, sometimes making assumptions as to how they might be explained.'

The Law
Baker J reminded himself of Practice Direction 12J, especially paragraphs 3-8 and paragraph 29. Paragraph 29 states:

'The court should, wherever practicable, making findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, and the child's parents and any other relevant person.'

He reminded himself of the law concerning appeals in circumstances such as these. In particular, that the hearing was a review, rather than a rehearing:
'A court can only allow an appeal where the decision of the judge in the first instance was wrong or unjust because of some procedural or other irregularity. The appellate courts have repeatedly stressed the need for caution and restraint when considering appeals… based on challenges to findings of fact made …'

Baker J went on to consider the judgment of Lewison LJ in Fage UK Ltd & Anor v. Chobani UK LTD & Anor [2014] EWCA Civ 5 where he stated:

'Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them...
… It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case.'

Baker J also considered the observations made by Baroness Hale in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, where Her Ladyship noted:

'…but where findings depend upon the reliability and credibility of the witness, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnessed give their evidence.'

Before reaching a conclusion, Baker J made some wider observations of the additional difficulties which had blighted this case. The first was lack of judicial continuity – he noted that with a shortage of judges, private law cases are often given lower priority when it comes to judicial continuity compared with applications under Part IV, Children Act 1989. Secondly, he remarked on the findings that each of the parties sought. They were, he concluded, of a disparate nature: '…it would be challenging for anyone, a judge or anyone else, to detect a pattern from those findings…'

Baker J refused the mother's appeal on all grounds, concluding that:
'…the mother has not demonstrated that the Recorder's findings were wrong or that there was material irregularity in the process. The appeal is therefore dismissed.'

Summary by Bethany Hardwick, barrister, St John's Chambers, Bristol.

____________________________

This judgment was delivered in public but it is ordered that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment shall be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved.

Appeal case no: 2018/0103
Neutral citation no [2018] EWHC 2771 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(On appeal from the Central Family Court
Miss Recorder Evans)

Royal Courts of Justice

Thursday, 13 September 2018


Before:

MR JUSTICE BAKER

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B E T W E E N :

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF A AND R (CHILDREN)

A MOTHER
 Appellant
-  and  -
A FATHER Respondent
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JANET BAZLEY QC and SHARON SEGAL (instructed by Hughes Fowler Carruthers) appeared on behalf of the Appellant.
JAMES TURNER QC (instructed by Sears Tooth) appeared on behalf of the Respondent.
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Transcribed by Opus 2 International Ltd.
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This transcript has been approved by the Judge (subject to Judge's approval
)
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J U D G M E N T
[Note: this version of the judgment incorporates amendments made in response to counsel's request for clarification and amplification]


MR JUSTICE BAKER:
1. This is an appeal against findings made in a judgment delivered by Mr Recorder Evans on 11 June 2018 on cross-allegations of domestic abuse arising in proceedings for a child arrangements order under s.8 of the Children Act involving two boys: A, now aged seven and three-quarters; and R, now aged six.

Background
2. The following summary of the background to the hearing is taken from a very lengthy chronology extending to fifty-two pages prepared on behalf of the appellant mother.  Much of that document extends to the details of the disputes in correspondence and various interim applications to the court which it is unnecessary to recite in detail here.  The salient details are as follows. 

3. The boys' father is aged forty-three and the mother thirty-five.  They were married in 2009.  They are comfortably off financially and live in Central London.  During the marriage, the care of the children was assisted by a series of nannies.  It seems to be agreed that there were difficulties in their relationship from an early stage.  The mother asserts that the difficulties were caused by the father's intolerant, critical and controlling behaviour.  He, on the other hand, asserts that the mother was temperamental, difficult and controlling.  The mother further asserts that the father demonstrated an obvious favouritism towards the older child, A, over the younger child, R, and sought to come between A and his mother.  The father, on the other hand, denied those allegations and asserted he treated the children equally, but claimed that the mother has always been closer to R and is jealous of the father's relationship with A.

4. Each party also alleges that the other behaved in a way towards the children which, it is contended, was inappropriate.  It is the mother's case that the father compared the shape and size of his penis with the boys' genitalia and allowed them to touch his penis while bathing.  The father alleges that the mother allowed R to fondle her breasts and, on occasions, inserted her tongue into R's mouth while kissing him.  Whether these allegations were true and, if so, whether there was any sexual aspect to the behaviour has been an issue in the proceedings.

5. By the end of 2015, the parties' relationship was in significant difficulties and they started sessions of couple therapy.  In May 2016, they separated, with the father renting another house in Central London, leaving the mother and the children in the former family home.  Despite the separation, however, the father continued to play an active role in the care of the children. 

6. On 27 August 2016, while the parties were preparing to leave with the children to stay in the family's holiday home in Spain, an incident had occurred which, on the mother's case, culminated in an assault on her by the father.  This incident featured in the schedule of findings sought by the mother at the hearing before the recorder.  A further incident occurred in September 2016.  In October 2016, while the family was again staying at the holiday home in Spain, another incident occurred when, on the mother's case, she was assaulted by the father.  On this instance it was said that R was present and involved in the incident.  This incident also featured as a specific item in the schedule of findings sought by the mother.  Further incidents occurred during the following months.

7. In January 2017, the parties concluded the couple therapy and started mediation with a view to resolving issues between them following the apparent breakdown of their marriage.  At that stage, by agreement between the parties, the children were spending considerable amounts of time with both parents, although various issues arose as to those arrangements. On 7 April 2017, the mother filed a divorce petition.  There followed extensive correspondence between solicitors concerning the child arrangements, leading to an interim arrangement under which parenting time was divided between the parties in a way which provided that the children would spend four nights with their father in every fortnight and that, in addition, he would see them at other times. Difficulties continued to arise between the parents as to the frequency of the father's contact with the children and as to his behaviour during contact, in particular his alleged tendency to encourage the children to say they were unhappy with their mother.  Notwithstanding these problems, it seemed that the parties were fairly close to resolving the child arrangements following the mediation which continued over a period of months and involved, apparently, over 100 hours of meetings and a cost in excess of £50,000.  Given the very substantial resources devoted to mediation, it is to say the least regrettable that the parties were unable to resolve their difficulties.

8. On 3 July 2017, the father filed an application for a child arrangements order, seeking a slight extension of the interim regime so as to provide that the children would spend five nights a fortnight with him, including alternate weekends from Friday after school until Monday morning.  In completing the application form, he ticked the box marked "No" in relation to concerns about a risk of harm.  In response to the application, the mother's solicitors wrote on 4 July, complaining of the father's aggressive and bullying behaviour during the mediation process and asserting that the application to the court confirmed that he had always intended to subvert that process.  They invited the father to agree their proposals as to child arrangements but warned that, if he was unable to agree, the mother would ask the court "before any order is made to consider, as it must, the conduct of your client towards her and the children and her safeguarding concerns."  They proceeded to specify a number of allegations of domestic violence and harm which they proposed to raise within the proceedings.

9. There followed extensive further correspondence concerning child arrangements.  On 27 July, the father's solicitors wrote responding to the allegations, asserting that their client "is not the bully in this relationship."  On 17 August 2017, the mother's solicitors issued an application for child arrangements orders together with a Form C1A in which they set out allegations of harm which it was alleged the children had suffered, and also allegations of domestic abuse against the father. On 18 August, Cafcass sent a safeguarding letter in advance of the FHDRA which had been fixed for 23 August, stating that the author had not been able to speak to the father and, as a result, safeguarding checks were incomplete, but recording that, in the light of the information provided by the mother, the matter had been referred to the local authority.

10. The FHDRA on 23 August took place before the magistrates.  Both parties were represented by leading counsel.  On behalf of the mother it was asserted that a fact-finding hearing was necessary in relation to safeguarding concerns set out in her letter of 4 July.  In response, it was asserted on behalf of the father that no separate fact-finding hearing was required, that the mother was pursuing a tactical course, and that any truly relevant allegations on either side could be investigated in a global hearing.  It was submitted that the matter should be dealt with speedily by the appointment of an independent social worker.  It seemed that no order was drawn up following this hearing, apparently because the parties were unable to agree the terms, although it was clearly decided that the mother's allegations should be set out in a Scott schedule limited to five allegations, and directions were given as to the filing of statements in relation to those allegations.

11. Meanwhile, the parties were continuing to argue through solicitors as to the details of contact arrangements, in particular as to summer holidays.  One particular concern raised by the mother was that the father should be accompanied and supervised during his time with the children, including on holiday.   Each party had employed nannies and, on 25 August, the mother wrote to the two nannies employed by the father asking them to sign a letter confirming that they understood that neither of the boys should spend any time with the father without one of them being present.  One of the nannies signed the letter but the other did not. On 29 August, the father's solicitors wrote complaining that the mother's lawyers had wrongly tried to insert a provision for supervised contact in the order following the FHDRA which had neither been ordered nor agreed, and also about the mother's actions in writing to the nannies. This led to a further exchange of correspondence between the solicitors.  Some days later, the local authority social worker to whom the matter had been referred by Cafcass wrote to the mother stating that the local authority was carrying out an investigation under s.47 of the Children Act in the light of her allegations, and that while the inquiry was being carried out, the social worker was not recommending unsupervised contact. Following receipt of this email, the mother's solicitor wrote again to those acting for the father stating that, unless both nannies signed the letter agreeing to the supervision of contact, the children would not be allowed to go to Spain with the father as planned.  This prompted the father's solicitors to seek to apply on short notice to the Family Division urgent applications judge, Russell J, for a specific issue order seeking delivery of the children for the holiday.  In the event, however, Russell J declined to hear leading counsel for the father or, apparently, even to permit him to go into her court to make representations on the basis the application was neither urgent nor in compliance with the rules. Following this, the father's solicitors wrote to those acting for the mother, accepting that their client, "has no alternative, albeit under duress, but to comply with the mother's conditions," as to the nannies.  As a result, the children were allowed to go on holiday with the father.  The children's time with him was apparently supervised throughout by one or other of the nannies.

12. Following their return from holiday, the lengthy exchange of correspondence about the child arrangements continued into the autumn of 2017.  On 14 September, the father issued a further application for orders under s.8 complaining that the mother was seeking to frustrate his contact with the children and for the first time raising allegations about the risk of harm to the children.  He asserted:

"I desisted from making allegations of harm against the mother in the spirit of cooperation but, in the light of the manner in which the mother has chosen to conduct the matter, I make allegations of harm in my C1A to set out the true position."

The alleged harm to the children included emotional, psychological and sexual harm.

13. On 19 September, the social worker wrote reporting that, in her interviews with the children, neither of them had made any allegation of concern.  She added, however, the local authority wished to take forward direct work with the boys and so, in order to ensure their safety and welfare at this time, it was her view that contact should remain supervised. On 22 September, the matter came before HHJ Lazarus.  The parties were again represented by leading counsel.  In the course of the hearing, undertakings were given by both parents not to discuss the issues in front of the children, nor denigrate the other party or the nannies in the hearing of the children. As to the issue of supervision, the judge concluded that, on an interim basis, in the light of the allegations made, there would have to be a degree of general background supervision or observation of the children during their contact and that such supervision should be performed by a professional social worker, although, until such a person could be found, one of the nannies would have to perform the task.  The judge made various rulings as to the interim child arrangements and gave directions and fixed a further hearing for 4 December. Subsequently, the parties' counsel engaged in the exercise of seeking to agree the consequential order but, as seems to have happened repeatedly in this case, they were unable to do so, in particular as to the identity of the independent social worker to be appointed to supervise the father's time with the children.  Submissions were sent to the judge setting out the different proposals.  On 4 October, the judge responded setting out her views on the issues in dispute, indicating that she preferred the professional nominated by the mother as the appropriate supervisor.  She expressed the hope that the parties would be able then to agree the terms of the order but provided that, should they be unable to do so, the matter should be restored for a further hearing before her. Inevitably, perhaps, the parties remained at odds on a number of issues and thus the matter came back before Judge Lazarus on 9 October.  At that hearing, she gave rulings on outstanding issues.  Subsequently, the independent social worker nominated by the mother was instructed to supervise or observe the father's time with the children and duly acted in that capacity for several weeks, both in this country and during holidays abroad.  She reported that there were no concerns and that the children were happy and adjusting well to the arrangement.

14. There was ongoing correspondence over persisting issues about the arrangements for supervision of the contact.  Meanwhile, the local authority social worker continued her investigation and on 24 November, she filed her report under s.7.  She concluded that she had no concerns regarding the quality of contact between the boys and the father and recommended that the contact continue and that it should thereafter be unsupervised.  She recommended that the amount of contact should remain at its current level and stressed that the parents needed to ensure that contact was unaffected by the conflict in their relationship. In her report the social worker made some comments about the father's behaviour towards her, describing him as strong, confident and forceful, and observed that he can come across as intimidating and that he tried to make her submit to his view, and that his behaviour was a way of seeking to gain control when he felt disempowered.  She recommended that he should engage with some therapeutic sessions to help him reflect on how he relates to others.

15. The hearing on 4 December took place before Mr Recorder Allen.  It was adjourned part-heard to 15 December.  During the hearing, the court heard evidence from the social worker.  The court listed the matter for a fact-finding hearing before a circuit judge in May 2018, and gave detailed directions for the preparation for that hearing, including an order limiting the number of witnesses to be called to certain named persons.  Following detailed submissions, the judge made orders defining the children's arrangements pending the hearing.  Once again, it seems, the parties were unable to agree on the precise terms of the order and the Recorder was obliged to rule on their different proposals.

16. On 6 February 2018, the father's solicitors wrote indicating that they were proposing to invite the court to give directions permitting them to call additional witnesses at the hearing.  In an open letter, the solicitors put forward proposals for a final order as to the child arrangements without the need for a fact-finding hearing.  The mother's solicitors rejected those proposals and continued to insist that a fact-finding was required.  Thereafter, an amended Scott Schedule was filed on behalf of the father and the parties exchanged statements from the various witnesses.

17. In the event, the fact-finding hearing did not take place before a circuit judge as ordered but was re-listed, apparently at short notice, before Miss Recorder Evans.  The parties were again represented by leading counsel: Miss Janet Bazley QC leading Miss Sharon Segal on behalf of the mother and Mr James Turner QC on behalf of the father. At the start of the hearing, Mr Turner made a preliminary submission that a separate fact-finding hearing was unnecessary.  The Recorder directed written submissions on that point.  Following further submissions as to the extent of the evidence, the oral evidence then began with the mother giving evidence, followed by her two witnesses and the father then starting his evidence on the following day.  On the third day, following the written submissions as to the necessity of a separate fact-finding hearing, the Recorder delivered a short judgment ruling that such a fact-finding hearing was required. The father then concluded his evidence with his supporting witnesses and the parties' counsel delivered oral submissions.  On the following day, they filed written submissions.  The Recorder had indicated that she had hoped to deliver judgment that afternoon but, in the event, informed the parties that she was unable to do so.  As a result, judgment on the fact-finding issue was reserved.  The Recorder made an order giving directions for a further hearing with interim child arrangements specified.

18. On 4 June 2018, the Recorder sent out her draft judgment to the parties.  On 6 June, counsel submitted suggested corrections.  In response to Miss Bazley's suggestions, Mr Turner expressed concern that she was "going beyond the limited exercise of identification of typos and other obvious factual errors."  Miss Bazley responded expressing surprise at Mr Turner's suggestion.  Further emails were sent to the court along the same lines.  On 11 June, the Recorder sent an email to the parties stating:

"Please find attached Miss Bazley's clarification/amplification document with my annotated comments included in tracked changes.  I also attach my judgment incorporating a small number of additions and further amendments in tracked changes.  I will hand down the perfected judgment once I have received any proposed words from the parties …. Mr Turner, you will see that I incorporated the majority of your suggested corrections within the judgment."

At the hearing on 11 June, the Recorder formally handed down the judgment.  She rejected the submission made on behalf of the mother to the effect that certain findings made against the father necessitated a risk assessment before any further hearing, but she did agree that an independent social worker should be instructed to prepare a section 7 report and to consider any issues as to risk within the report. In the order made following the hearing, the Recorder refused to allow permission to appeal and listed the matter for a welfare hearing in September 2018, giving the parties permission to instruct an independent social worker to prepare a report.  Pending the next hearing, the Recorder directed that the children should spend five nights every fortnight with the father, including alternate weekends from Friday after school until the following Monday morning.  She also made the final order for child arrangements during summer holidays with lengthy provision as to ancillary arrangements during handovers.

19. On 27 June, the mother filed notice of appeal to this court against the Recorder's findings.  On 2 July, I granted permission to appeal, stayed the extension of the weekend contact to Monday mornings pending the determination of the appeal, and gave appropriate directions.  Skeleton arguments were duly filed.  The appeal was listed before me on 6 September.  Meanwhile, for reasons unconnected with the appeal, the hearing listed before the Recorder in September has been adjourned until the end of October.

20. This judgment was originally delivered on 13 September 2018. Afterwards, Miss Bazley indicated that there were a number of matters on which she invited the court's correction, clarification or amplification. After hearing those matters outlined, I directed that she file supplemental written submissions on those issues and that Mr Turner, if so advised, should respond in writing. Both counsel have filed written submissions in accordance with that direction and this final version of the judgment incorporates some amendments in response.


The Recorder's judgment and findings
21. The Recorder's judgment begins with a short summary of the background and the parties' respective positions.  She then reminds herself in some detail of the law to be applied in fact-findings hearings, although she did not at any point expressly refer to Practice Direction 12J which gives guidance as to the treatment of allegations of domestic abuse and harm when the court is considering child arrangements and contact orders. As part of her summary of the law, the Recorder reminds herself that she has to take account of all the evidence and each piece of evidence in the context of all of the other evidence, citing the well-known passage from the judgment of Dame Elizabeth Butler-Sloss, President, in Re T [2004] EWCA Civ 558 at paragraph 33. 

22. The Recorder then summarised her impression of the parties and the other witnesses.  She described the mother as being extremely guarded, observing that she "often seemed reluctant to provide any detail beyond that set down in her statements and many of her answers appeared to be deliberately vague."  The Recorder noted that the mother presented the father to the court as being abusive, controlling and domineering and herself as a victim of his behaviour who had learnt not to challenge him too often.  The judge observed that, on the evidence that she had seen, she did not accept this to be an accurate presentation of the balance of power within the relationship, either before or after separation.  She expressed the view that the mother seemed unable to view any action on the father's part as anything other than negative.  She was particularly critical of the fact that the mother had told the Cafcass officer of an incident when the father had allegedly placed his hands around her neck but had not included that history in her five allegations on which she sought findings against the father.  She also noted that the mother accepted that some of the details of allegations of violence made by the mother to her GP were incorrect.  The Recorder concluded that those points gave rise to "some cause for concern in relation to [the mother's] motivation in making the allegations before the court as well as her credibility as a whole." Turning to the father, the Recorder described him as "a relatively open and frank witness within the context of proceedings which he obviously found both intrusive and exasperating."  She added, however, that there were nonetheless areas where his evidence had been less than clear and that she did not "accept the truth of his version of events in relation to certain important matters."  She also thought that there was some force in the mother's assertion that the father's counter allegations had been raised as part of a tit for tat response to her allegations. The Recorder then made a number of observations about the
four nannies who gave evidence, two called on each side.

23. The Recorder then turned to the findings of fact sought by each party against the other (five by the mother, four by the father).  It is notable that the structure of her judgment was to consider the evidence on each allegation in turn.

24. The mother's first allegation was of an incident of physical violence on 27 August 2016, which took place at the parties' holiday home in Spain.  The mother alleged that father had demanded that she stop packing the children's bags and, when she continued, he cornered her in the bedroom, grabbed her by the face and used his forehead to push her against the wall, causing the inside of her mouth to bleed.  He then locked the room where the children's clothes and suitcases were to prevent the mother and nanny from packing them.  The children had been in the house at the time and witnessed the argument but not the incident in the bedroom. In reply, the father denied the mother's version of the incident.  He agreed that there had been a disagreement over the packing of the clothes but asserted that the mother had come up to him and put her nose up against his face and had aggressively pushed him backwards.  In response, he had cupped her face and she had then slapped his face hard, whereupon he left the room.

25. The Recorder considered all the evidence about this incident and set it out in some detail over several pages.  She then set out her conclusion about the incident in these terms:

"Having carefully considered the entirety of the evidence before me on this point, I find as follows, that, on the balance of probabilities: (a) there was a disagreement between the parties … which related to which clothes should be left at the property and which should be packed and taken elsewhere; (b) in the context of this disagreement, [the father] had grabbed [the mother] by the face (as opposed to cupping her face) to defuse the situation and aggressively put his face in hers; (c) the grabbing of her face was relatively short-lived and did not involve pushing [the mother] up against the wall and holding her there against her will; (d) there was no injury to the inside of [the mother's] mouth; (e) [the mother] did not slap [the father] to the face on this occasion."

In summary, therefore, the Recorder found that the father had assaulted the mother on this occasion, although she rejected a number of the details in the mother's account.

26. The Recorder then proceeded to consider the mother's second allegation which was of an incident involving violence in October 2016.  The mother alleged that she was sitting on a bed at home with R on her lap, comforting him after A had pushed him off the bed.  The father shouted at her to get out of the room and when she refused he assaulted her, including by grabbing her by the neck and ear.  He forcibly took R out of her arms, causing him to scream for his mother.  The mother asserted that she had reported the incident to her GP and it had been registered with social services but no further steps taken. In response, the father asserted that the children had been playing hide and seek in his bedroom; that A had accidentally banged R, causing him to cry; that the mother had run into the room and grabbed R out of the father's arms; that the father had politely asked the mother to leave so he could change for tennis; that the mother had obstinately refused to leave the room and the father had then picked up R to take him out of the room, whereupon the mother flew into a rage, shouting at the father not to do so.  The father denies holding the mother at any point during this incident.

27. Again, the Recorder carefully considered and analysed the evidence about this incident.  As part of her analysis she considered the evidence of the mother and one of the nannies about an entry in the nanny's diary concerning this incident in which, according to the nanny, she wrote an entry because the mother wanted her to.  The Recorder reached the following conclusions:

"Having carefully considered the entirety of the evidence put before me on this point, I find as follows, that on the balance of probabilities: (a) [the father] attempted to physically remove [the mother] from his room by pulling her, including to her arms, where she sustained some light marks as a result of his action; (b) [the father] picked up R from [the mother's] lap as opposed to from the bed alongside; (c) [the father] did not drag [the mother] out of the room by her arm and neither did he shove her while she was leaving and holding R in her arms; (d) the diary entry … was made by [the nanny] some days after the incident and at the request of [the mother] who also told [the nanny] what she wanted the entry to say."

The Recorder therefore found that the father had again assaulted the mother on this occasion, this time in the presence of the younger child, but again rejected a number of the details of the mother's account.

28. The mother's third allegation was of controlling and coercive behaviour. As originally drafted, the allegation was that "during the parties' marriage and increasingly since 2015 and on an ongoing basis the father has employed bullying and controlling behaviour with both children." The mother set out details of four specific ways in which she said the father had behaved in a controlling and coercive way towards the children.  The father denied the allegation. The Recorder began her analysis of this allegation by observing:

"I am of the view that [the mother's] perception of the facts as she has considered them is likely to be genuinely held.  However, an objective assessment of the facts in question does not in my view come anywhere close to establishing the reality of her perception, although they may well be indicative of different parenting styles between the parties."

The Recorder proceeded to consider all of the four specific ways in which the mother had said that the father had behaved in a coercive and controlling way towards the children and rejected all of the allegations. (In the course of the appeal, an issue arose as to the amendment of this allegation. I shall return to this point later in this judgment.)

29. The mother's fourth allegation was of inappropriate behaviour and lack of boundaries.  In this allegation, as mentioned above, she asserted that the father had compared the size and shape of the boys' penises with his own and allowed the boys to touch his penis while bathing and, on occasions during playing wrestling with them, had grabbed hold of their penises as a joke, as a result of which the boys started to touch and grab each other's and the father's penis.  The father substantially denied this allegation.  In particular, he denied the allegation of comparing penis sizes.  He accepted that the children had on occasion tried to grab his penis but asserted that he had told them to stop and treated the matter calmly without making a big scene.  He asserted that the mother had deliberately created a false picture taking this behaviour out of context with a view to controlling his time with the children. The Recorder described this as a curious allegation in the sense that the mother alleged that the husband had repeatedly made what appeared to be sexual assaults upon the children, although she took pains to stress that she did not believe the motivation to be sexual.  Noting that the mother was reluctant to be drawn on the detail of this allegation in the course of the oral evidence, the Recorder found it inconceivable that the mother had witnessed such behaviour on the number of occasions asserted without taking steps to deal with it at the time.  The Recorder accepted the father's evidence and rejected the mother's allegation.

30. The mother's fifth and final allegation was that the father had discussed matters with the children and encouraged them to disparage and distance themselves from the mother and her family.  The father denied this allegation completely.  The Recorder found no basis upon which to conclude that the father had encouraged the children to hold negative views about, and distance themselves from, the mother or her family.

31. Turning to the father's allegations, the Recorder considered first the allegation of physical harm said to have been perpetrated by the mother on the father.  Within this allegation the father relied on three incidents: (a) an incident in 2012 when, in the presence of A, the mother had allegedly kicked, punched and spat at the father in the family home; (b) an incident in March 2016 where the mother had assaulted the father in the car, grabbing his hand and putting the car into "park" at a speed of 20 mph; (c) an incident in Spain in August 2017 when the mother had allegedly slapped the father's face. The mother substantially denied these allegations.  In respect of (a), the Recorder found it more likely than not that the mother had kicked the father and punched him but did not find that she had spat at him.  In respect of (b), she found it more likely than not that on one occasion the mother did, indeed, put the moving car into park while the father was driving.  Allegation (c) is related to the mother's own first allegation when, as already mentioned, the Recorder rejected the allegation the mother had slapped the father on the face.  The Recorder did not consider the effect on A of the assault of the father in 2012.

32. The father's second allegation was of emotional behaviour by the mother towards him.  Amongst the specific allegations made under this heading was an assertion that the mother habitually shouts at the father in front of the children and denigrates him in a way which confuses them.  It was further asserted that, during the period after separation, the mother required the father not to tell the children and pretended that he was still living at the house.  The Recorder noted that little evidential detail had been provided about these allegations, and in respect of the latter point concluded that the findings sought were unclear, and that none would therefore be made.

33. The father's third allegation was of emotional and psychological behaviour by the mother on the children.  Amongst the specific allegations relied on under this heading was that the mother had been questioning the children and recording them on her iPhone, having previously put words in their mouths so that they repeated the same to try to establish that he was a bad father.  It was further asserted that the mother had tried to make two of the nannies write false entries in their diaries against the father.  It was also asserted that the mother had continually tried to tell R that he did not want to see his father. The mother denied encouraging the children to say anything negative about the father or coaching them as alleged, or at all.  She acknowledged that she had on occasions recorded what the children were saying on her iPhone but denied that this was after coaching them.  The Recorder said she had no difficulty in finding that the mother had recorded the children on her iPhone on more than one occasion when she was asking them questions relating to their contact with their father, although the Recorder added there was no clear evidence to suggest that she had put words in their mouths before recording. In respect of the nannies' diary entries, the Recorder noted that she had already made findings about that in respect of the mother's second allegation.  After considering the evidence about this allegation, including the evidence of the other nanny, however, she concluded that there was insufficient evidence to justify a finding of conspiracy to fabricate evidence.  She held that the evidence did not come close to establishing the allegation that the mother had tried to tell R that he did not want to see his father.

34. Finally, the Recorder considered the fourth allegation made by the father.  In the schedule, this had been described in this way:

"Inappropriate sexual behaviour: (a) on a number of occasions in 2016, the mother had allowed R to fondle her breasts, sometimes over and under her clothing and once stating that this was "the best action she had had for weeks"; (b) the mother habitually kisses R on the lips with her tongue in his mouth." 

This allegation was completely denied by the mother.  The Recorder dealt swiftly with the first part of the allegation, concluding that there was nothing unusual about a small child touching his mother's breasts and describing the use of the word "fondle" and the heading of "inappropriate sexual behaviour" to describe it as ill-founded and unhelpful.  The Recorder found the allegation about the mother putting her tongue in R's mouth to be more complicated.  Although denied by the mother, it was something that two of the nannies said they had seen.  The Recorder concluded it was more likely than not that the father and the two nannies were telling the truth about what they had seen.  The Recorder therefore concluded her initial draft judgment by saying:

"I accordingly find that the mother has put her tongue in R's mouth on more than one occasion, albeit fleetingly." 

Following the request for clarification by mother's counsel, the Recorder then added this final sentence to her judgment:

"No evidence was put before me as to any sexual element of this conduct and I find none to be present."


The law
35. At this point it is appropriate to consider two aspects of law which arise on this appeal, namely, the court's approach to allegations of domestic abuse in the context of proceedings concerning child arrangements; and the approach of an appellate court to an appeal of this nature. 

36. As I observed in another appeal, Re G (Re-opening of Fact-Finding) [2017] EWHC 2626 (Fam) at para.21:

"Courts have increasingly recognised the dangers posed by domestic violence and abuse to the welfare of children. This is reflected in Practice Direction 12J headed 'Child Arrangements and Contact Order: Domestic Violence and Harm'... [P]ublic concern at the perceived failure to treat allegations of domestic violence with sufficient seriousness in family proceedings has led to a new version of the Practice Direction."

The Recorder received extensive submissions on the new version of Practice Direction 12J, although she did not expressly refer to it in her judgment. 

37. The following paragraphs of the Practice Direction is of particular relevance to this case.  First, there are the general principles set out in paras.4 to 8 inclusive.  Paragraph 4 provides:

"Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents."

38. Paragraphs 5 and 6 of the Practice Direction set out general principles about the court's treatment and approach to this issue.  Paragraph 7 provides:

"In proceedings relating to a child arrangements order, the court presumes that the involvement of a parent in a child's life will further the child's welfare, unless there is evidence to the contrary. The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm."

39. Paragraph 3 of the Practice Direction contains a number of definitions of which the following are particularly important in this case:

"'domestic abuse' includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse."
"'coercive behaviour' means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim."

"'controlling behaviour' means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour."

40. Finally, para.29 provides:

"The court should, wherever practicable, make findings of fact as to the nature and degree of any domestic abuse which is established and its effect on the child, the child's parents and any other relevant person."

41. In L v F [2017] EWCA Civ 2121 Peter Jackson LJ observed at para.61:

"The correct approach to allegations of domestic abuse is set out in PD12J. It sets out a clear and helpful framework to ensure that full consideration is given to the grave effects of domestic abuse, and that proper weight is given to abuse where it is proved. At the same time, the framework requires an exercise of judgement by the court in each case where the issue may arise. Few relationships lack instances of bad behaviour on the part of one or both parties at some time and it is a rare family case that does not contain complaints by one party against the other, and often complaints are made by both. Yet not all such behaviour will amount to 'domestic abuse', where 'coercive behaviour' is defined as behaviour that is 'used to harm, punish, or frighten the victim...' and 'controlling behaviour' as behaviour 'designed to make a person subordinate...' In cases where the alleged behaviour does not have this character, it is likely to be unnecessary and disproportionate for detailed findings of fact to be made about the complaints; indeed, in such cases it will not be in the interests of the child or of justice for the court to allow itself to become another battleground for adult conflict."

42. I turn next to consider the law concerning the treatment of appeals in these circumstances.  An appeal to the Family Division is a review, not a rehearing.  A court can only allow an appeal where the decision of the judge in the first instance was wrong or unjust because of some procedural or other irregularity.  The appellate courts have repeatedly stressed the need for caution and restraint when considering appeals both based on challenges to findings of fact made and (inaudible) conducted by the judge at first instance.  Probably, the best-known exposition of this is the oft-cited passage of the judgment of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, paras.114 to 115:

"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them.  [The Lord Justice then identifies a number of cases and continues.]  The reasons for this approach are many. They include

i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

ii) The trial is not a dress rehearsal. It is the first and last night of the show.

iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.

115.  It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."

43. One of the cases cited by Lewison LJ in that passage is the Supreme Court decision in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.  At para.40 of the judgment in that case Lord Wilson noted:

"An error in the balancing exercise justifies intervention only if it gives rise to a conclusion that the judge's determination was outside the generous ambit of reasonable disagreement or wrong within the meaning of the various expressions to which he had referred."

At para.200 Baroness Hale of Richmond observed:

"The Court of Appeal has jurisdiction to hear appeals on questions of fact as well as law. It can and sometimes does test the judge's factual findings against the contemporaneous documentation and inherent probabilities. But where findings depend upon the reliability and credibility of the witnesses, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnesses give their evidence. The question is whether the findings made were open to him on the evidence. As Lord Hoffmann explained in Biogen Inc v Medeva plc [1997] RPC 1, the need for appellate caution is 'based upon much more solid grounds than professional courtesy'. Specific findings of fact are 'inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance...'"

44. These comments apply to appeals heard in this court following the changes in the rules introduced in October 2016.  On the other hand, I also bear in mind the observation in Sherrington v Sherrington [2005] EWCA Civ 326 at para.33:

"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."


The appellant's submissions
45. On behalf of the appellant mother, Miss Bazley and Miss Segal put forward the following arguments.  Their overriding assertion is that their client considers that the errors made by the judge were on such a scale and degree that the integrity of the whole judgment is undermined. 

46. Ground 1 of the appeal is that the Recorder's approach to the fact-finding exercise was tainted by material irregularity.  It is submitted that her approach was fundamentally flawed and wrong in that she failed to have any or any proper regard to, let alone follow, the guidance in Practice Direction 12J.  It is pointed out the practice direction is not mentioned in the judgment.  Miss Bazley and Miss Segal identify some aspects of the evidence on the first and second allegations made by the mother which were not mentioned by the Recorder in her judgment – for example, the mother's assertion, which was accepted by the father, that in the first incident he locked the door of the room.  In addition, Miss Bazley and Miss Segal rely heavily on the fact that the Recorder made no findings as to the impact, individually or cumulatively, of the incidents of domestic violence on the mother or the children.  It was submitted that, in doing so, she failed to comply with the obligations imposed on her by para.29 of the Practice Direction.  When her attention was specifically drawn to this issue in the request for clarification, she merely responded that she "did not find this point to be persuasive." Miss Bazley and Miss Segal submit that the judge was led into error by her failure to consider, let alone apply, the correct definition of "domestic abuse."  They submit that, had she applied the Practice Direction properly, the only tenable conclusion open to her would have been that domestic abuse in the form of coercive and controlling behaviour was established to the required standard.

47. The second ground of appeal concerns the Recorder's analysis of evidence.  Miss Bazley and Miss Segal submit that her analysis was deeply flawed and, in many respects, wrong.  They submit that it was incumbent upon her as part of her analysis to consider the genesis and the development of the father's allegations and the evidence in support of them.  They rely on the fact that, in his first application, the father expressly stated that he was not alleging that the children had ever experienced, or were at risk of experiencing, any form of domestic violence.  It was only at a later stage, after the mother had raised her allegations, that the father responded by raising his. Furthermore, Miss Bazley and Miss Segal rely on the fact that the father, at several points of the process, sought to persuade successive judges, including the Recorder at the start of the hearing, that a fact-finding hearing was unnecessary. 

48. Miss Bazley and Miss Segal make some strong criticisms of the Recorder's assessment of the witnesses.  They submit that she was unjustly critical of the mother being "very guarded" in her evidence.  They submit that she failed to take into account that, if she had been subjected to domestic abuse over a period of time, the mother would be likely to find it very difficult to give evidence about it, particularly with the father sitting nearby.  They submit that the Recorder unfairly formed an adverse impression of the mother without making any allowance for this fact. They also criticise the Recorder for her conclusion that the mother's inability to remember the detail of some events undermined her credibility.  They remind this court that nobody is necessarily infallible, particularly after time has passed.  In addition, they submit that the Recorder ought to have attached weight to the conclusion of the local authority social worker that the mother was likely to have experienced a suppressive and dominating relationship with the father and that this was likely to have affected her evidence.

49. In contrast, the Recorder found the father to be "relatively open and frank."  Miss Bazley and Miss Segal submit that this was an extraordinary assessment in the light of the fact that significant aspects of his accounts of the events were rejected by the Recorder who, as set out above, made a number of serious findings against him contrary to his evidence.  They point out that the Recorder rejected significant parts of the father's evidence where it differed from the mother's.  They submit that it is impossible to reconcile this with the Recorder's overall assessment of the father as a witness.

50. Miss Bazley and Miss Segal further criticise the Recorder for her failure to give any reason for not accepting or attaching weight to the assessment of the social worker as to the father's behaviour towards her, and the social worker's description of him as a strong, confident and forceful person who can come across as intimidating.  This evidence was set out in the report and also repeated in her oral evidence at the earlier hearing. Miss Bazley and Miss Segal also contend that there were inconsistencies and illogicality in some of the Recorder's assessment of the four other witnesses, the nannies.

51. Another aspect of the attack on the Recorder's analysis of the evidence is an assertion that she failed to properly weigh the evidence for and against each allegation or to give any or any adequate reason for the conclusions.  Miss Bazley and Miss Segal do not shrink from submitting that the Recorder was clearly inexperienced in dealing with fact-finding cases of this type.  They make a number of specific criticisms of the way in which the Recorder weighed up the evidence.  They submit that in certain instances her conclusions bore little resemblance to the allegations set out in the Scott schedule.  In particular, they assert that she failed to consider the fact of the father making allegations of inappropriate sexual behaviour against the mother as part of the mother's case that the father was controlling and abusive of her.  They point out that this had already been heralded by Mr Recorder Allen when setting the matter down for hearing. They submit that Recorder Evans failed to analyse the sexual allegations and their genesis against this background, nor did she deal with contradictions between the father and his witnesses as to the sexual allegations. As for the finding that the mother had assaulted the father in May 2012, Miss Bazley and Miss Segal submit that the Recorder's analysis of the evidence was wholly inadequate and they point to a number of factors which they submit suggested that his allegation was untrue, including the late emergence of this allegation long after the father had expressly said that there were no allegations of harm to make against the mother.  In this context, they submit that the Recorder failed to deal with the mother's case not only as to discrepancies in the father's account but also that it was reactive to her allegations.

52. The third ground of appeal is headed "Unfairness."  Under this hearing, it is submitted that the Recorder formed an unfairly adverse view of the mother which affected the neutrality of her forensic analysis.  It is submitted that, whereas, in the case of the mother, the judge resolved an inconsistency by concluding that she was lying or exaggerating, in the case of the father she was often prepared to ignore obvious inconsistencies or inaccuracies, sometimes making assumptions as to how they might be explained.  In respect of one of the nannies relied on by the father, complaint is made that the Recorder concluded that she was a truthful witness despite obvious flaws in her evidence, and that the Recorder ignored evidence which tended to show she was hostile to the mother, excusing inconsistencies on the ground that the nanny was simply mistaken.  In contrast, the Recorder was much more critical of the evidence of a nanny relied on by the mother.  It is submitted that the Recorder failed to give even an impression of fairness and therefore caused the mother to believe she was biased against her.

53. Miss Bazley and Miss Segal conclude their written submissions by contending the judgment is unsustainable.  It is submitted that the Recorder failed to address the father's alleged coercive and controlling behaviour or the impact of his behaviour on the children and, as a result, there was no valid assessment as to whether the arrangements for the children were "safe and beneficial" as required by the Practice Direction.

54. In reply, Mr Turner reiterates a point he made at various stages prior to, and at the start of, the hearing before the Recorder, namely that, given the few underlying substantive issues in relation to future child arrangements between the parties, the proceedings had already occupied a wholly disproportionate amount of court time and cost and that the fact-finding issue was of limited relevance.  He submits that the proceedings had been side-tracked and delayed by the mother's tactical manoeuvring and manipulation.  He points out that, notwithstanding her criticisms of the father's strong and forceful character, the social worker who investigated the case under s.7 concluded that there was a close and loving relationship between the father and the children and that his contact with them should not be supervised. 

55. Mr Turner invites the court to reject the characterisation of the Recorder's assessment and judgment put forward by Miss Bazley and Miss Segal.  It is his principal submission the Recorder conducted a conscientious and fair hearing.  Such errors and shortcomings in the judgment that may be identifiable were not sufficient to justify a successful appeal. Mr Turner acknowledges that the Recorder's judgment does not refer expressly to PD 12J but referred to instances in the transcript of the hearing which demonstrated that she was well aware of the Practice Direction and attentive to the issues she had to determine.  He submits that there was no obligation on her to refer specifically to the Practice Direction.  He points in particular to the exchanges between the Recorder and counsel as to the meaning of "coercive and controlling behaviour" under the Practice Direction as illustration of the fact the Recorder was focusing on the important issues.

56. Mr Turner relies heavily on the principle expounded in the case law quoted above that the judge hears and observes a witness giving evidence and has a significant advantage over any appellate court and it is therefore not for the appellate court to substitute its own weighing exercise for that of a trial judge.  He submits, in effect, that all the appellant's grounds can be dismissed by application of that principle.  He suggests that the court may conclude that the bringing of the appeal itself is another example of the mother's continuing desire to control and punish the father, minimising his involvement with the children's lives.


Discussion and conclusions
57. An experienced circuit judge – a designated family judge for a major court centre – observed to me recently that fact-finding hearings in private law children cases are often the most difficult forensic exercise required of a judge in the family court.  I agree. 

58. There were a number of specific factors about this fact-finding hearing which added to the challenges facing the Recorder.  First, this has turned into a bitterly-fought battle (I choose that noun deliberately) between two highly intelligent people with sufficient resources to devote as much as they wish to the contest.  They have instructed top solicitors who in turn have instructed top counsel who have been instructed to fight the case and have done so with consummate skill, deploying all the formidable advocacy weapons at their disposal.

59. Secondly, this case has been bedevilled by a lack of judicial continuity: first, the justices; then Judge Lazarus; then Mr Recorder Allen; then due to be listed before HHJ Boye but switched at a late stage to Miss Recorder Evans.  Judicial continuity is an important principle in all family cases but not infrequently private law cases are given lower priority than those involving applications under Part IV of the Children Act.  Given the acute shortage of judges at present, and the high demand of public law family cases, this is perhaps not surprising, but it can cause particular difficulties in private law cases. Miss Recorder Evans did not have the benefit of experience of the earlier hearings in this case which were conducted by Judge Lazarus and Mr Recorder Allen at which a number of issues arise. 

60. A third issue arose because of the earlier decision that each side would only be entitled to seek limited findings, five in the case of the mother, four in the case of the father.  This is a common practice designed to restrict the scope of fact-finding hearings which might otherwise get out of hand if allowed to traverse years of family feuding.  Such a restriction is consistent with the requirement in the overriding objective in the Family Procedure Rules, rule 1.1, to deal with cases in a way that is proportionate to the issues but, as I observed in Re LG (Re-opening Fact-finding) [2017] EWHC 2626 (Fam) at para.27, it can give rise to difficulties:

"In taking this course, however, parties and the court must be careful to ensure that significant issues are not overlooked. Sometimes a pattern of harassment and other forms of domestic abuse is only discernible by conducting a broader examination of the allegations."

In this case the findings which each of the parties asked the court to make were notably disparate.  The mother's findings comprised two incidents involving physical violence, one composite allegation of coercive and controlling behaviour, consisting of four specific allegations involving the children, an allegation of inappropriate behaviour and lack of boundaries involving genital touching but not alleged to be sexual, and, finally, an allegation that the father had encouraged the children to disparage, and distance themselves from, the mother. The father's allegations involved one allegation of physical violence, an allegation of emotional abuse by the mother on the father, shouting and belittling him in front of the children, an allegation of psychological behaviour in the form of trying to come between the father and the children, and then the final allegation of inappropriate behaviour with a suggestion – not conclusively withdrawn until halfway through the father's evidence – that there was a sexual connotation.  It would be difficult to draft a more disparate set of allegations.  Certainly, it would be challenging for anyone, a judge or anyone else, to detect a pattern from those specific findings.  It seems to me that each party was hoping to demonstrate a pattern of coercive, controlling and manipulative behaviour of the other.  If so, the way in which the hearing was set up was in my judgment not designed to demonstrate such a pattern.  There are, no doubt, people who can be blamed and held responsible for that, but Miss Recorder Evans was certainly not one of them.

61. In the circumstances, I have considerable sympathy for the Recorder.  As counsel pointed out at the hearing, I must not allow my decision to be swayed by sympathy but, as it happens, that does not arise because, having read the appeal documents carefully and reread them following the hearing before me, I have increasingly come to the view that the Recorder's work in this case was worthy of praise rather than sympathy.  I agree with Mr Turner's submission that her approach was careful and conscientious.  With respect, I emphatically reject Miss Bazley's dismissive description of the judgment as fundamentally flawed and unfair.  I have no idea whether Miss Bazley and Miss Segal are right in describing the Recorder as inexperienced, but for my part I certainly would not have recognised that from reading her judgment.

62. Mr Turner is right to base his argument on the well-recognised principle that the appellate courts must not interfere with a trial judge's evaluation of the evidence and findings of fact, for this judgment was based fundamentally on the Recorder's careful and well-articulated assessment of the witnesses.  Her assessment that the mother was guarded and the father open and frank was one which she was entitled to make.  She saw them.  She heard them.  I see no grounds for this court concluding that those assessments were wrong.  To do so would be to go against the guidance repeatedly given about the respect which an appeal court must give to the trial judge's evaluation of witnesses. Equally, I do not find material inconsistencies between those general assessments of the parties as witnesses and the Recorder's specific findings which she made on the allegations.  There is no inevitable contradiction in my judgment between the finding that the mother was in some respects guarded and the father frank and open, and then proceeding to find, as the Recorder did, that she accepted some of the mother's allegations and rejected some of the father's allegations.  The fact that she reached the detailed findings she did to my mind simply illustrates the care with which she approached this task.  Equally, I see no basis for this court criticising the Recorder's detailed assessment and evaluation of the evidence of the nannies.

63. I turn then to the specific grounds of appeal raised by Miss Bazley and Miss Segal.  First, I reject the submission that there was a material irregularity in the Recorder's approach to the fact-finding exercise.  Although she did not mention PD 12J in her judgment, I am satisfied that she had it firmly in mind, as is illustrated by exchanges in the course of the hearing and the questions raised by the Recorder in the course of submissions.  She assiduously considered the detailed findings raised in the schedule.  I have looked carefully at the specific points which it is said she did not cover, for example in the first incident the fact that the father locked the bedroom door.  I do not consider her failure to deal with some of the details materially undermines her findings.  I see no basis upon which this court could fairly conclude that the Recorder failed to apply the correct definition of "domestic abuse".  This was plainly the issue which concerned her, which is why she asked counsel about the meaning of "controlling and coercive behaviour" during the course of submissions.  They referred her to the Practice Direction and Peter Jackson LJ's judgment in L v F.  I am satisfied that she had it firmly in mind.

64. Next, I reject the submission made on the mother's behalf that the judge's analysis of the evidence was deeply flawed.  I am satisfied that she was fully aware of the genesis of the father's allegations and the fact that he had raised them at a late stage having initially asserted that there was no history of harm.  She knew about the tit for tat element in the father's case.  I have already observed that the Recorder's assessment of the witnesses was plainly within her discretion.  In my judgment, it was careful and measured.  The fact that she did not deal in her judgment specifically with every single detail of the allegations does not in my view undermine the reliability of her conclusions about each incident.  As Lewison LJ observed in Fage, there is no obligation on a judge to deal in her judgment with every argument presented by counsel and, as Lord Hoffman observed in the passage quoted by Baroness Hale in Re B quoted above, specific findings of fact are "inherently an incomplete statement of the impression which was made on the judge during the evidence."  The Recorder made findings on the specific allegations in the schedule.  This is what she was asked to do.  I have already commented upon the disadvantages inherent in such a process and, in particular, the way in which the schedule was drafted in this case. Ms Bazley and Miss Segal have gone through the judgment seeking to identify each and every point which they say the Recorder failed to take into account.  I have looked at each point individually and collectively.  Insofar as there are omissions, I do not consider that they materially undermine the Recorder's overall conclusions.

65. Turning to the third ground of appeal – unfairness – I consider, with respect, that the unfairness arising is in the criticism of the Recorder.  Miss Bazley and Miss Segal contend that the Recorder formed an unfairly adverse view of the mother which affected the neutrality of her forensic analysis.  Having read the judgment and the submissions on which it was based, the transcript of the hearing, and the request for clarification and the Recorder's response to that request, I conclude that the suggestion of unfairness is wholly without merit.  The Recorder's view of the parties was, in my view, nuanced.  She accepted some parts of the evidence given by each of the parties but rejected others.  She is perfectly entitled to do so.  In her summary of the law, she reminded herself of the principle in R v Lucas [1981] 720 and, in my judgment, she fairly applied it.

66. One point which has given this court grounds for thought – and which was a factor in my decision to give permission to appeal – was the fact that the Recorder does not address the impact of the abusive behaviour which she found on the children.  When invited by the mother's counsel to consider the impact on R of seeing the mother assaulted in the second incident, the Recorder simply said that she "did not find this point to be persuasive."  In the course of the hearing, I expressed some concern about this. On reflection, however, it seems to me that the comment was a response to the reference in the request for clarification to concerns expressed by the school about R's emotional behaviour following the incident.  That conclusion was plainly one she was entitled to reach having considered the evidence.

67. Paragraph 29 of the Practice Direction requires the court, wherever practicable, to consider the impact of domestic abuse on the children.  The Recorder's judgment does not address that matter.  In oral submissions, Miss Bazley took me through the various strands of the evidence before the Recorder as to the impact on the children.  It seems to me that the Recorder is obliged, insofar as she can, to consider the impact on the children of the abuse which she has found both parents committed, but I do not consider that the absence of any conclusion in her judgment as to the impact of the domestic abuse on the children gives rise to a ground of appeal. I respectfully suggest that the Recorder may wish to consider whether to make such findings at the forthcoming hearing when she will have the benefit of the report from the independent social worker.

68. Another matter which I took into account when granting permission to appeal was the Recorder's treatment of the issue of coercive and controlling behaviour. According to the allegations as originally pleaded and set out in the first version of the Scott schedule, and subsequently in the Recorder's judgment, the coercive and controlling behaviour which the mother alleges in the third allegation was directed towards the children, not towards the mother herself. I was somewhat puzzled about this since it seems to have been clear from the way in which the case has been argued on appeal that a fundamental complaint which each party has against the other is that each has been controlling and manipulative. 

69. In their request for clarification and amplification of this judgment, Miss Bazley and Miss Segal drew my attention to the fact that, in an amended version of the Scott schedule, the mother's third allegation had been amended to read "bullying and controlling behaviour with both me and the children". It should be noted that the Recorder did not refer to this amendment in her judgment, and, so far as I can see, no copy of an amended version of the schedule was included in the appeal bundles. Miss Bazley and Miss Segal contend that there can be no doubt that the Recorder was aware that the mother's case was that the father had been controlling and bullying of her as well as the children. In his lengthy response to the request for clarification and amplification, Mr Turner made a number of observations, including that the mother had not been given permission to amend her allegations in the way incorporated in the final version of the Scott schedule, and that Mr Recorder Allen's intention had plainly been to restrict the allegations, not expand them.

70. Having considered the matters raised in Miss Bazley's request for clarification and amplification, and in Mr Turner's response, I accept that the third allegation made by the mother was amended, although I am uncertain whether this was in accordance with court directions. Importantly, however, the particulars of the allegation of controlling and coercive behaviour were not amended. The Recorder carefully considered the specific allegations of coercive and controlling behaviour which the mother asserted the father had demonstrated.  She rejected them all, whilst finding that the mother genuinely believed the father was controlling.  In seeking clarification of the Recorder's judgment, Miss Bazley and Miss Segal drew attention to a number of pieces of evidence which they contended pointed to the father being coercive and controlling.  The most striking of those pieces of evidence was that of the social worker who had described the father's behaviour as forceful in a way which was consistent with the mother's own characterisation of father's behaviour.  In the response to the request for clarification of her judgment, the Recorder said that she had reached her conclusion having regard to all the evidence and, in particular, the voluminous correspondence between the parties.  In oral submissions before this court, Miss Bazley submitted that it was no longer good enough for a judge to use that general phrase when explaining their decision.  In some cases, it may, indeed, not be enough for a judge simply to say that they reached a conclusion on all the evidence.  In this case, however, I do not think this is a substantial criticism of the Recorder's judgment or her findings on this issue, having regard to the overall detail which characterises the judgment. I also remind myself that earlier in the judgment, as recorded above, the Recorder stated that she did not accept the mother's description of the father as domineering and controlling, stating that this did not accord with her impression of the power balance within the family having heard all the evidence.  I find that this is a conclusion which the Recorder was fully entitled to reach having regard to all the evidence. 

71. Consequently, after careful consideration of all the matters raised on this aspect of the case, including the issues raised by Miss Bazley and Miss Segal in their request for clarification and amplification, I find that the Recorder's conclusions on the issue of the father's alleged coercive and controlling behaviour were within her discretion and are not matters which can be successfully challenged on this appeal.

72. A third area which initially gave me some pause for thought was the Recorder's treatment of the allegations of inappropriate behaviour.  Most people looking at the allegations made by each party would assume that they amount to sexual abuse.  The mother insisted, however, that her allegations about the father's comparison of penis sizes and other aspects as set out above did not amount to sexual abuse.  The father's allegations concerning the mother's behaviour was headed "inappropriate sexual behaviour" and the insinuation of a sexual element persisted until withdrawn at a late stage of the hearing during the course of his evidence. The Recorder's findings on the allegation were, in my judgment, plainly within the ambit of her discretion having heard all of the witnesses.  It was the mother's case that the father had deliberately raised the allegation as a tit for tat response to hers, that his allegation was fabricated and that, if the court agreed, it would be evidence of coercive and controlling behaviour.  Mr Recorder Allen agreed that such an outcome was feasible and expressly warned Mr Turner on the father's behalf about that possibility. Miss Recorder Evans found that the mother had put her tongue in R's mouth but, admittedly after being prompted in a request for clarification, concluded there was no sexual element in that behaviour.  She is criticised for not then going on to conclude that the father's allegation in this regard was another example of coercive and controlling behaviour. As I observed to Mr Turner in the course of the hearing, the fact that the suggestion of a sexual element in the mother's behaviour towards R was partially withdrawn in February 2018 but not definitively abandoned until late in the hearing before the Recorder could be regarded as manipulative. But I do not think that the Recorder's failure to categorise the father's litigation conduct as controlling or coercive behaviour gives rise to any ground of appeal.

73. For the reasons set out above, I have concluded that the mother has not demonstrated that the Recorder's findings were wrong or that there was a material irregularity in the process.  The appeal is therefore dismissed.

74. In conclusion, I wish to say to the parties that the Recorder's findings which now stand uncorrected by this court demonstrate that each of them has at times behaved badly towards the other.  The history of this litigation also shows them, if I respectfully say so, in a poor light.  They are lucky people in many ways, not least to have two wonderful sons of whom they are justly proud.  I urge them both to reflect on their behaviour and to redouble their efforts to focus on their children's welfare.  The boys will be affected forever by the fact that their parents are now separated.  The way in which they conduct themselves hereafter will determine the extent to which the boys' lives are blighted.
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