Appeals by mother (M) and appellant father (F2) from findings of fact.
How should submissions be reflected in judgments?
Jackson LJ confirmed the need for judges who have reached a particular conclusion following a lengthy fact finding hearing resulting in a lengthy judgment to identify the best points which have been made in opposition to it and explain why they have not been accepted.
M had six children: A (19), B (17), C (16), D (8), E (5) and F (3). The older four were girls and the younger two boys.
F2 was the father of the younger three.
The family originated from overseas.
At the fact-finding hearing the District Judge had 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 in respect of allegations that F1 had physically mistreated A and B before coming to England.
At a later hearing, a Cafcass report revealed the three girls were adamantly opposed to seeing F1 so an order was made that there should be no contact. A, B and C stayed with M and F2.
C told her school that she, A and B had been physically abused by M and F2, and sexually abused by F2. The police became involved and F2 was removed from the home. The local authority issued care proceedings, ICOs were made and the three younger children were placed in foster care together where they remained.
A stayed with M and B went to live with MGM.
C chose to go into foster care.
C maintained her account in a video interview.
A refused to give a statement, later retracting her allegation and then making a statement that F2 had never abused her.
B made a statement alleging sexual behaviour by F2 towards her and saying that she had seen him regularly sexually abuse C and trying to kiss A.
All the allegations were denied by M and F2.
The fact-finding hearing:
The FFH was listed for 12 days but lasted 16 due largely to B making more extensive allegations for the first time against F2 and M.
19 findings of fact were made in the terms sought by the LA the details of which are not necessary for this article.
The Judge accepted B’s evidence, broadly accepted C’s allegations, found A’s retraction of her allegations to be untruthful and found M’s and F2’s evidence comprehensively unreliable and untruthful.
M and F2 were granted permission to appeal. F2 appealed all findings and M appealed 7, mainly those based on the allegations made by B for the first time in her oral evidence.
M’s grounds of appeal were:
- 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 of those matters she found to have corroborated it.
- The Judge’s assessment of B’s credibility was superficial.
- The Judge had wrongly decided M was a liar on the basis of findings made in private law proceedings or, in the alternative, the treatment of the DJ’s findings as final was unjust because of a serious procedural irregularity.
- The Judge had taken judicial notice of matters in respect of which it was not open to her to do so.
F2’s grounds of appeal were the same in general terms as grounds 1,2 and 4 relied upon by M but with the additional ground (5) that the Judge had 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.
Jackson LJ rejected the specific arguments advanced in support of Grounds 1,2 and 4.
Counsel for M and F2 had 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.
Jackson LJ addressed the obiter dicta and noted a distinct difficulty in harvesting orbiter dicta expressed in one context and seeking to transplant them into another. He did not accept 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.
Jackson LJ said that no judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities.
However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account to past events or future intentions is likely to be reliable.
The court was not only entitled but expected to consider the child’s demeanor as part of the process of assessing credibility. 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.
Jackson LJ rejected the argument that the Judge had brushed aside inconsistencies on the basis that the majority of the matters relied upon were differences, not inconsistencies e.g. how often and for how long the abuse had occurred.
Nor was it wrong to consider B’s evidence had been 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.
Jackson LJ also addressed how the Judge had considered the question of coaching and the timing of the complaint resulting in her rejecting the suggestion that B had been influenced by MGM and her father. 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.
Jackson LJ also unreservedly rejected F2’s challenge to the Judge’s reasoning as she repeatedly referred to the possibility of coaching by MGM, F1 and M. The Judge understood the issues, grappled adequately with them, and gave a decision that explained what she decided and why.
She found F2 a wholly unreliable witness, gave reasons for this and described his evidence as weak and utterly unconvincing.
After rejecting the suggestion that the judgment (which took the Judge seven hours to deliver) was unbalanced Jackson LJ said he was entirely satisfied that the judge had understood the issues, grappled adequately with them, and gave a decision that explained what she had decided and why. In different circumstances, she might have been asked for minor clarifications, but her judgment stands securely as it is….there is nothing missing.
However, Jackson LJ added that:
The way in which a judgment is constructed is a course a matter for the judge, and it is not usually helpful to set out lengthy submissions in full detail. However, in the present case the Judge’s explanations for the failure of the Appellants’ case is to be found at various points of what is a long document, and it would, I think have been helpful if there had been a section in which those arguments were shortly summarised and directly addressed, perhaps making the judgment less susceptible to challenge in the process.
Jackson LJ also commented on the Judge’s approach to private law proceedings and on the delay in hearing the appeal.
With regards to the private law proceedings Jackson LJ said the Judge was bound to be aware that 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.
M had tried to advance a case that she had been the victim of domestic abuse by F1 (which was Counsel for F1 objected to) but had made no application to reopen the earlier findings.
Jackson LJ was very clear that any such application should have been made long before the final hearing and would almost certainly have been refused.
With regards to delay Jackson LJ commented on the delay in hearing this appeal and, whilst 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.
In a case involving young children, an open ended extension is unlikely to be appropriate when a fixed date may be more effective as a means of securing a transcript within a reasonable time.