Aa v Na and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Year | 2010 |
| Date | 2010 |
| Court | Family Division |
Contact proceedings – Findings of fact – Appeal – Mother being expelled from family home upon breakdown of parents’ marriage – Residence and contact proceedings commencing – Extensive allegations of domestic violence and violence towards children being made against father – Fact-finding hearing taking place – District judge finding father not to be credible witness and upholding allegations against him – Whether appeal court entitled to overturn findings of fact – Whether findings relating to credibility and violence tenable.
The parents lived with their three children and members of the father’s wider family. Upon the breakdown of the marriage, the mother was expelled from the family home without her children. Private law residence and contact proceedings relating to the children were commenced. A fact-finding hearing, which was originally listed for five days, lasted 17 days over nine months. The purpose of the hearing was to determine 89 cross-allegations of domestic violence and violence towards the children contained in the parents’ competing Scott schedules. Although the mother subsequently changed her version of events twice, the district judge found the version contained in her Scott schedule to be true on the balance of probabilities. He further held that the father was not a credible witness, having set out to mislead the court. A significant factor in his assessment of credibility was the allegation that the father had plotted to prevent certain witnesses from attending court. The final version of the judgment also expressly stated that the father had struck the children with his hands on their faces, backs and legs, notwithstanding the absence of any such finding in a previous draft judgment made available to the parties. A month after delivery of the judgment, the district judge made an interim shared residence order, effectively by consent, which provided for an equal sharing of time with the children. That order was to continue until a ten-day disposal hearing in June 2010. The father appealed against the district judge’s decision. Issues arose, inter alia, as to (i) the circumstances in which an appellate court could overturn the findings of a fact-finding hearing; and (ii) whether the district judge’s findings on credibility, allegations of domestic violence and allegations of violence against the children were tenable.
Held– (1) An appellate court could only find that a fact-finder was plainly wrong if (i) the fact-finder’s conclusion was demonstrably contrary to the weight of the evidence; or (ii) the decision-making process could be identified as being plainly defective so that it could be said that the findings
in question were unsafe. Errors of principle, such as the burden or standard of proof or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct, would fall under the second category. It was established that, in civil proceedings, the standard of proof was ‘on the balance of probabilities’. Expressed mathematically, that was P > 0·5. If a court were to find on the evidence that P = 0·5 (ie that the occurrence of the event was as likely as not) then the standard would not be met, as the respondent to the allegation that was sought to be proved was always entitled to the benefit of the doubt (see [15], [23], below).
(2) When it came to the treatment of litigation misconduct or demonstrated lies on collateral matters, in the assessment of core credibility in a fact-finding inquiry, the court should give itself the famous direction in R v Lucas [1981] 2 All ER 1008. If a party behaved reprehensibly in the conduct of litigation it could be a result of no more than a fierce determination to win; it did not follow that litigation misconduct inevitably demonstrated intrinsic mendacity on the primary issues. In assessing the overall credibility of the parents in the instant case, the district judge had placed considerable reliance on the allegation of interference with witnesses. However, at its highest, the father’s actions had been a misguided piece of litigation misconduct designed to prevent two witnesses from attending to give live evidence. The absence of rationalisation or analysis as to why the litigation misconduct informed a general finding of overall mendacity amounted to a significant defect in the reasoning process (see [44]–[47], below); R v Lucas [1981] 2 All ER 1008 considered.
(3) It was established that the serious nature of domestic violence allegations meant that such allegations had to be carefully pleaded and be the subject of clear evidence. In making factual findings the court had to examine carefully any inconsistencies made by the complainant, and where inconsistencies were exposed they had to be clearly analysed and rationalised in the verdict. If an individual was found guilty of domestic violence then fairness demanded that it was clearly explained to him why his defence had been rejected and the complainant’s case accepted. In the instant case, the mother’s oral evidence had been inconsistent with previous accounts and with the details in the Scott schedule. On the evidence before the court, it had been untenable for the district judge to conclude, applying correctly the standard and burden of proof, that it was more likely than not that the version events set out in the Scott schedule had actually happened in those terms. Furthermore, the judgment below had changed from a tacit acquittal of the father of mistreating the children in the draft judgment to an explicit finding that he had mistreated them by striking them on their backs, legs and faces. Although it was well-established that a judge could revise a draft judgment at any time up to hand-down, a change as important as that in the instant case needed to be accompanied by a clear explanation.
In its present expression, the judgment convicted the father of serious mistreatment of his children. The means by which that finding had been obtained were insupportable (see [54], [88]–[89], [94]–[96], below).
(4) The errors identified in the judgment of the district judge were of such a scale and degree that the whole judgment was rendered unsafe and would be set aside. The erroneous aspects could not be safely severed from the other findings. However, it was clear that there should not be a further fact-finding hearing. There would be no purpose to such a hearing, the parties having in effect agreed equal shared care at least for the medium term. By the same token, there should not be a ten-day disposal hearing in June 2010 and that hearing would therefore be vacated. It would be directed that the equal shared care order should run for a further 12 months at which point there should be a review before a High Court judge (see [97]–[98], [101]–[103], below).
Per curiam. A fact-finding hearing should only be ordered if the court can discern a real purpose for such a hearing. The finite resources of the court do not exist simply to provide a free-standing medium for one party to obtain, for no reason other than vindication, findings of matrimonial misconduct against the other. There is a parallel with allegations of conduct in ancillary relief proceedings. Even though there is a statutory imperative to take into account conduct where it would be inequitable to disregard it, the court will strike out allegations of conduct where it can be satisfied that even if proved it would make no material difference to the result (see [18], below).
Cases referred to in judgmentB (children) (sexual abuse: standard of proof), Re[2008] UKHL 35, [2008] 2 FCR 339, [2008] 4 All ER 1, [2009] AC 11, [2008] 3 WLR 1, [2008] 2 FLR 141.
Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, [1955] AC 370, [1955] 2 WLR 418, HL.
Biogen Inc v Medeva plc (1996) 38 BMLR 149, [1997] RPC 1, HL.
Clarke-Hunt v Newcombe (1982) 4 FLR 482, CA.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647, [1985] FLR 894, HL.
J (a child) (return to foreign jurisdiction: convention rights), Re[2005] UKHL 40, [2005] 2 FCR 381, [2005] 3 All ER 291, [2006] 1 AC 80, [2005] 3 WLR 14, [2005] 2 FLR 802.
McCartney v Mills-McCartney[2008] EWHC 401 (Fam), [2008] 1 FCR 707, [2008] 1 FLR 1508.
Practice Direction (residence and contact orders: domestic violence and harm)[2009] 1 FCR 223, [2008] 2 FLR 103.
R (a child) (fact finding hearing), Re[2009] EWCA Civ 1619, [2009] 2 FLR 83.
R v Lucas [1981] 2 All ER 1008, [1981] 1 QB 720, [1981] 3 WLR 120, CA.
S (a child) (abduction: grave risk of harm), Re[2002] EWCA Civ 908, [2002] 3 FCR 43, [2002] 2 FLR 815.
Sherrington v Sherrington[2005] EWCA Civ 326, [2005] 3 FCR 538.
Z (children) (unsupervised contact: allegations of domestic violence), Re[2009] EWCA Civ 430, [2009] 3 FCR 80, [2009] 2 FLR 877.
AppealThe father, AA, appealed against a fact-finding decision made by District Judge Malik in the course of private law residence and contact proceedings relating to his three children. The decision, which was incorporated into a final judgment dated 20 January 2010, upheld allegations of domestic violence made by the mother, NA. The children were joined as respondents to the appeal through their children’s guardian. The facts are set out in the judgment.
Judith Rowe QC and Michael Bailey (instructed by Huggins & Lewis Foskett) for the father.
William Metaxa (instructed by McMillen, Hamilton McCarthy Solicitors) for the mother.
The guardian did not appear and was not represented.
MOSTYN J. Introduction[1] This is an appeal by AA against the fact-finding decision of District Judge Malik which is incorporated in his final judgment dated 20 January 2010. It arises out of private law residence and contact proceedings relating to three children: Kab, born [in] October 2003; Kar, born [in] September 2004; and Qad, born [in] October 2006).
[2] The appellant is the father of the children; the respondent, NA is their mother. I shall refer to the appellant as F; and to the respondent as...
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