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B-M (Children: Findings of Fact) [2021] EWCA Civ 1371

Appeals made by the mother (‘M’) and Appellant father (‘F2’) from the findings of fact made in a reserved judgment of HHJ Sapnara on 19 March 2019. The appeals were dismissed.

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Introduction

M has six children: A (19), B (17), C (16), D (8), E (5) and F (3). The older four are girls and the younger two are boys. F2 is the father of the younger three, and the Respondent father ('F1') is the father of the older three [3]. The background leading up to the proceedings is as follows:

• The family originates from overseas. M and F1 married in 1999 and A and B were born.

• 2004: M came to England alleging domestic abuse by F1. M was pregnant with C and stayed with her mother ('MGM').

• 2009: F2 came to England and religiously married M in 2011 despite her subsisting marriage.

• M and F2 set up home and had the three younger children.

• 2012: with M's support, F1 came to England with A and B and they lived with MGM.

• 2013: A and B moved to live with M, F2, and the other children.

• 2013: F1 was not seeing his children so brought contact proceedings which led to the FFH in 2015.

• The FFH: the District Judge rejected M's case that she had been a victim of physical and sexual abuse by F1, finding her an unsatisfactory and untruthful witness. No findings were made about the allegations of F1 physically mistreating A and B before coming to England. 

• At a later hearing, a Cafcass report revealed the three girls adamantly opposed seeing F1 so an order was made that there should be no contact. A, B and C stayed with M and F2 [4-6].

The proceedings

In February 2020, C told her school that she, A and B had been physically abused by M and F2, and sexually abused by F2. A said F2 tried to kiss her and that he had a sexual relationship with B. The police became involved and F2 was arrested and removed from the home. The local authority brought care proceedings, ICOs were made, and the younger three children were placed in foster care together where they remain. A stayed with M, and B went to live with MGM. C chose to go into foster care [7].

C took part in a video interview shortly after her allegations and maintained her account. A refused to give a statement, later retracting her allegation and then making a statement in July 2020 that F2 had never abused her. B made a statement in May 2020 alleging sexual behaviour by F2 towards her and saying she had seen him regularly sexually abusing C and tyring to kiss A. All the allegations were denied by M and F2 [8].

The fact-finding hearing

The FFH began in January 2021. It lasted 16 days as opposed to the expected 12, largely due to B making much more extensive allegations for the first time against F2 and M [11].

19 findings of fact were made in the terms sought by the local authority. In summary:

• F2 sexually abused B and C over a number of years.

• M knew and had participated in some of the abuse.

• M and F2 physically abused the three older children.

• All the children had suffered emotional harm due to witnessing domestic abuse between F2 and M and physical abuse of the children.

• All the children were at risk of further significant sexual, physical and emotional harm.

• The Judge declined to make a finding concerning F1 being physically abusive towards A and B before they came to England [12].

The Judge accepted B's evidence, broadly accepted C's allegations, found A's retraction of her allegations to be untruthful, and found M and F2's evidence comprehensively unreliable and untruthful [13].

The appeal

Permission was granted by Moylan LJ for M and F2 to appeal. F2 appealed all findings, and M appealed 7, those being the ones based on allegations made for the first time in B's oral evidence [14].

M's grounds of appeal were:

• Ground 1: The Judge's approach to B's allegations and evidence was flawed, in particular in relation to her assessment of the evidence which contradicted B's account and those matters she found to have corroborated it.

• Ground 2: The Judge's assessment of B's credibility was superficial and based primarily on demeanour to the detriment of a full analysis of her evidence as a whole, of independent evidence and of any inconsistencies.

• Ground 3: The Judge wrongly decided M was a liar on the basis of findings made in the private law proceedings (evidenced by her decision to give herself the Lucas direction in relation to those findings). Further, or in the alternative, the treatment of the District Judge's findings as final was unjust because of a serious procedural irregularity.

• Ground 4: The Judge took judicial notice of matters in respect of which it was not open to her to take judicial notice [15].

F2 advanced appeals in the same general terms as Grounds 1, 2, and 4 and appealed on the additional ground (Ground 5) that the Judge failed to give any or sufficient consideration to the submissions made on his behalf or to explain why those submissions were either accepted or rejected [16].

Jackson LJ dealt with the issues as follows:

• The Judge's assessment of B's evidence (Grounds 1 and 2) and her reference to judicial notice (Ground 4).

• The adequacy of her reasons for rejecting F2's arguments (Ground 5).

• Her approach to the findings in the private law proceedings (Ground 3) [17].

The assessment of B's evidence

Jackson LJ rejected the specific arguments advanced in support of Grounds 1, 2 and 4 [35].

Counsel for M and F2 relied on several passages of obiter dicta which they said warn judges against relying upon the way a witness gives evidence as opposed to the content, consistency, and probability of the evidence itself [22]. Jackson LJ addressed the obiter dicta and noted a distinct difficulty in harvesting obiter dicta expressed in one context and seeking to transplant them into another [23]. He did not accept that the Judge should have been driven by the dicta in the cases cited by the Appellants to exclude the impressions created by the manner in which B and C gave evidence [28]. The court was not only entitled but expected to consider the child's demeanour as part of the process of assessing credibility [29]. The Judge understandably gave considerable weight to the way in which B and C described what they experienced, but she did so alongside a number of other considerations [32].

The argument that the Judge brushed aside inconsistencies was also rejected. The majority of the matters relied upon were differences, not inconsistencies e.g. how often and for how long the abuse occurred. Nor was it wrong to consider B's evidence was corroborated by other evidence as there was a very significant amount of other evidence supporting the overall picture of a home in which children had been shockingly mistreated [33].

Jackson LJ then addressed how the Judge had considered the question of coaching and the timing of the complaint resulting in her rejecting the suggestion that B was influenced by MGM and her father. She said B was in a safe place so had the time and space to realise and then become comfortable enough to articulate what had been done to her. Jackson LJ said it was unnecessary to refer to judicial knowledge when what was really being meant was the common understanding of human behaviour that any judge of the Family Court will have [34].

The Judge's reasons for rejecting F2's case

Jackson LJ unreservedly rejected F2's challenge to the Judge's reasoning as she repeatedly referred to the possibility of coaching by MGM, F1 and M [38]. The Judge understood the issues, grappled adequately with them, and gave a decision that explained what she decided and why [39]. She found F2 a wholly unreliable witness, gave reasons for this, and described his evidence as weak and utterly unconvincing [42]. 

The Judge's approach to private law proceedings

Jackson LJ said the Judge was bound to be aware M was disbelieved in the private law proceedings and she directed herself not to treat that as justification for disbelieving what she said. M's evidence was assessed in great detail and reasons were given for rejecting it [43].

M herself tried to advance a case that she had been a victim of domestic abuse by F1. Counsel for F1 objected since there had been no application to reopen the issue in the manner provided for [44]. Jackson LJ made clear that  if there had been any credible application to reopen the 2015 findings it should have been made long before the final hearing and most certainly would have been refused [45].

Comment on delay

At the end of his judgment, Jackson LJ commented on the delay in hearing this appeal. Although acknowledging the difficulties faced, he counselled against orders extending time for making an application for permission to  appeal by reference to the receipt of a transcript rather than by reference to a specific date [47].

Outcome

The appeals were dismissed.

 

Case summary by Diana Panizzon-Pineda, Barrister, St John's Chambers

For full case, please see BAILII