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AB v CD [2021] EWHC 819

In a private law children case with cross-allegations of domestic abuse, Mrs Justice Roberts of the High Court allowed a father’s appeal against Recorder Armitage’s findings of rape and threats to remove their child to Pakistan, following a 4-day fact-finding hearing. Roberts J determined that the manner in which the Recorder reached her conclusions was flawed, and the case was remitted for an early rehearing.

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Background

The parents are doctors who married in 2011 but separated the following year. At that time, the respondent mother was pregnant with their daughter, who has lived with her mother since birth. The child was 8 years old at the time of this appeal.

The parents were judicially separated by April 2013. In October 2013, the father was convicted of criminal charges relating to unauthorised and illegal provision of prescription drugs. He received a nine-month custodial sentence and lost his practising certificate. He unsuccessfully appealed against the removal of his licence to practice as a doctor in this jurisdiction. Thereafter, the father spent much of his time in Pakistan and Saudi Arabia.

Despite the parents having separated and the father spending significant time abroad, the parents spent time together with the child as a family. The parents had also attempted to make arrangements for the child to have a relationship with her father, but these attempts broke down.

Proceedings

Therefore, in November 2019, the father made an application for contact with the child. The mother's domestic abuse allegations against the father did not surface until he issued his application. The father claimed that the mother's allegations, which she said started in 2006, were entirely fabricated.

Following the mother's allegations, the father issued a further application for the child to live with him. The father also made counter-allegations against the mother including of sexual and physical abuse and parental alienation. There were therefore two separate Scott Schedules.

Recorder Armitage heard evidence over 2 ½ days. She found five of the mother's allegations proved, including sexual and emotional abuse and threats to remove the child to Pakistan. She did not find the mother's allegations of physical abuse proved, but in a recital on the face of her approved order, she referred to those allegations as having "strength and power". The Recorder accepted only one of the father's counter-allegations, in relation to the mother snatching a credit card and throwing some items to the floor.

Appeal

On behalf of the father, an appeal with eight grounds was lodged, arguing that the judge's reasoning process was fundamentally flawed and that her findings could not stand. The judge was criticised for compartmentalising the evidence and failing to consider the father's case that the allegations against him had been fabricated. It was said that the judge focussed on parts of the evidence; excluded some very serious matters (e.g. the allegations of threats to kill and throwing acid); and took a selective approach. The judge had decided she did not need to consider or determine some of the allegations raised by the mother. On behalf of the father, it was argued that such a decision drove the Recorder to consider the rape allegations without asking herself whether the mother was capable of fabricating very serious allegations.

It was argued on behalf of the father that the Recorder's decision not to make specific findings about certain aspects of the evidence meant that her judgment did not set out a "line of sight" into how far evidence that the Recorder found "unnecessary or unhelpful" did instead influence her deliberations.

The father's appeal argued that the Recorder's judgment did not include a summary of the oral evidence she heard; an account of her impression of the witnesses as truthful or otherwise; or an account of the weight which she had attached to any of these matters. It was said that the Recorder did not weigh the parties' evidence, in order to conclude that the mother's evidence was to be preferred. The grounds of the appeal also included a complaint that the Recorder had failed to give herself a Lucas direction.

In relation to the rape allegations, the court had prevented the father from putting some evidence and it was said that the Recorder's judgment did not address other evidence, including that the father and the mother had agreed that the father lacked a desire to have sexual relations with his wife. It was also submitted on behalf of the father that the Recorder had failed to explore all the documentary evidence which had the potential to undermine the allegations of rape.

On behalf of the mother, it was argued that the findings were reliable when considered in the context of the whole judgment and that the Recorder had the advantage of seeing and hearing the parties' oral evidence. With no procedural irregularity or error of law, the High Court was asked to find that there was no justification for disturbing those findings. It was highlighted that counsel did not seek further amplification or qualification of the judgment.

The law

Appeals are governed by Rule 30.12 of the Family Procedure Rules 2010 providing that an appeal shall be allowed when the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity and an appellate court is permitted to draw inferences that are justified on the basis of the evidence.

All appellant courts must consider:


(i) has the judge in the court below made an error of law?

(ii) has the judge reached a conclusion on the facts which was not open to him or her from the foot of the evidence which was before the court?

(iii) did he or she fail to take into account, or give proper weight to, a significant piece of evidence or matter and/or given inappropriate or undue weight to another aspect of the evidence?

(iv) did the judge adopt a process which was procedurally irregular and unfair so as to infect or contaminate his/her decision to the extent where it is unjust?

(v) did the judge exercise his or her discretion in a manner which was outside the boundaries within which a reasonable disagreement is possible and permissible?

A fact-find judgment must be clear, in part because it can have far-reaching, life-changing, consequences for families. Guidance on the balance to be struck between clarity and "the exigencies of… over-burdened court lists" has been provided by Munby P (as he was then) in Re F (Children) [2016] EWCA Civ 546, paras 22-23.

Decision

In this case, it was not suggested that the Recorder made any error of law, but rather that she failed to properly assess the evidence and improperly weighed and balanced it.

Roberts J notes in this judgment that the Recorder's decision to ignore certain allegations was a case-management decision which she was entitled to make. Having declined to consider them, the position as a matter of law was that they were never proved and both parties were entitled to proceed on the basis that they played no part in her analysis or deliberations. But the Recorder's recital (acknowledging the "strength and power" of those allegations) suggested that the Recorder considered they might be true, and therefore engendered doubt about whether and to what level the Recorder analysed those matters when considering credibility.

The appellant court found that there had been an absence of analysis in the Recorder's judgment on the issues of the father's credibility and the father's case that he was facing a series of "escalating and false allegations manufactured by the mother in order to subvert any prospects of success" in his contact application.

Roberts J also highlighted that the Recorder's approach to a Lucas direction was not sufficiently nuanced because it suggested the Recorder was expunging from her mind the fact that the father had been found to be dishonest in the criminal proceedings. In fact, a Lucas direction is a reminder that "a person can lie for a number of different reasons including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure" and that a judgment must reflect on how that direction has shaped the approach to relevant issues of credibility. The Recorder was wrong to completely put from her mind the father's previous conviction for dishonesty.

Finally, Roberts J concluded that the Recorder's reasoning was "insufficient to explain how she conducted her assessment of credibility and which matters she did, or did not, weigh in the balance when reaching her conclusions". It was a mistake, determined Roberts J, to have included within her approved order the recital about the "strength and power" of the allegations which she claims to have ignored in her survey of the evidence.

For practitioners and judges, in cases when one party claims that allegations have been fabricated, it is incumbent on the fact-finder to explain carefully why that claim is rejected.

Summary by Lauren Suding, Barrister, Field Court Chambers.

For full case summary, please see BAILII