B-M (Children: Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Phillips,Lady Justice Elisabeth Laing |
| Judgment Date | 20 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1371 |
| Docket Number | Case Nos: B4/2021/1194 and 1218 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1371
Lord Justice Peter Jackson
Lord Justice Phillips
and
Lady Justice Elisabeth Laing
Case Nos: B4/2021/1194 and 1218
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT EAST LONDON
Her Honour Judge Sapnara
ZE20C00084
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Twomey QC and Rebecca Littlewood (instructed by Irvine Thanvi Natas Solicitors) for the Appellant Mother
John Tughan QC and Nathan Alleyne-Brown (instructed by SA Law Chambers) for the Appellant Father 2
Christopher Poole and Samuel Marks (instructed by Local Authority Solicitors) for the Respondent Local Authority
Mary Hughes (instructed by Farani Taylor Solicitors) for the Respondent Father 1
Tim Parker (instructed by Gary Jacobs & Co Solicitors) for the Respondent Children by their Children's Guardian [written submission only]
Hearing date: 14 September 2021
Approved Judgments
Introduction
After hearing these appeals, we informed the parties that they would be dismissed. These are my reasons for joining in that decision.
The appeals are from findings of fact made in a reserved judgment of Her Honour Judge Sapnara on 19 March 2021. I will say something about the delay in hearing the appeal at the end of this judgment, which is drafted so as to preserve the anonymity of the family, and in particular of the children.
The Appellant mother (‘M’) has six children, four older girls and two younger boys: A (19), B (17), C (16), D (8), E (5) and F (3). The Appellant father (‘F2’) is father of the younger three. The Respondent father (‘F1’) is father of the older three.
The family originates from overseas. M and F1 married in 1999 and the two older children were born. In 2004, M came to this country, alleging domestic abuse by F1; at the time she was pregnant with C. She lived with her mother (‘MGM’), who was already here. In 2009, F2 came to England and in 2011 he and M were religiously married, despite M's subsisting marriage to F1, who had remained abroad with the two older children. M and F2 set up home together with C and in due course the younger three children were born.
In 2012, with M's support, F1 came to England with A and B. They initially lived with MGM. In 2013, A and B moved to live with M, F2 and C, and the younger children as they came to be born.
After A and B left his care, F did not see them or C. He brought proceedings for contact in 2013, which led to a fact-finding hearing in 2015, at which he was represented while M was in person. The District Judge heard evidence from M, F1 and MGM. He rejected M's case that she had been the victim of sexual and physical abuse by F1. For lack of evidence, he made no findings about allegations that F1 had physically mistreated A and B before they came to England. He generally found M to be an unsatisfactory and untruthful witness. However, at a later hearing, after a Cafcass report revealed that the three girls were adamantly opposed to seeing F1, an order was made that there should be no contact. A, B and C therefore remained with M and F2, with some contact with MGM. It is a feature of the case that MGM has been sympathetic to F1 and antipathetic to F2.
The proceedings
The present proceedings centrally concern the three younger children, for whom a final welfare decision is overdue. They also concern C, who will soon be 17. They arose in this way. In February 2020, C told her school that she, A and B had over a long period been sexually abused by F2 and physically abused by M and F2. A also said that F2 had attempted to kiss her and that she knew that there was what she described as a sexual relationship between F2 and B. The police became involved. F2 was arrested and removed from the home. The local authority brought care proceedings. Interim care orders were made and the younger three children were placed in foster care together, where they remain. A remained with M. After some weeks B went to live with MGM. C chose to go into foster care and was placed separately.
Shortly after C's allegations, she took part in a video interview in which she maintained her account. A refused to give a statement; in March 2020 she retracted her allegation, and in July 2020 she made a statement that she had never been abused by F2. B made a statement in May 2020, alleging sexual behaviour by F2 towards her and stating that she had seen him sexually abusing C on a regular basis and trying to kiss A. M and F2 denied all the allegations, which also extended to evidence of domestic abuse between themselves and physical violence towards the older children.
Inquiries conducted during the proceedings included a psychiatric assessment of M and a parenting assessment by an independent social worker (‘ISW’), who interviewed M, F2, MGM, A and B.
The fact-finding hearing began in January 2021. It was a hybrid hearing in which the evidence of the parents was given in court, while the older children gave evidence by video link from another room in the court building in accordance with arrangements made during Re W assessments. Evidence was first given by C, A and B, the order reflecting the chronology of their allegations, with the parents giving evidence later in the hearing. Once the evidence was completed, substantial written submissions were filed and the judge gave an oral judgment at a later date.
The hearing had originally been expected to last for twelve days, but in the event it was necessary for sixteen days of evidence to be given, much of it through interpreters. This was largely because, when B came to give her evidence, which was taken in short stretches over the course of four days spanning a weekend, she for the first time made much more extensive allegations against F2 and M. The parties and the court then took stock. There was no application for an adjournment, or for C or A to be recalled, but B returned to answer further questions about her overall account. The local authority then expanded its schedule of findings to include B's further allegations, which were put to M and F2 during the course of their own extensive oral evidence.
The judgment is a very substantial one, running to over 80 pages of transcript, and demonstrating the Judge's close command of the evidence. She made nineteen findings of fact in the terms sought by the local authority. In summary, she found that F2 had sexually abused B and C over a number of years, that M had known this and had participated in some of the abuse, that M and F2 had physically abused the three older children, that all the children had suffered emotional harm as a result of witnessing domestic abuse between F2 and M and physical abuse of the children, and that all the children were at risk of further significant sexual, physical and emotional harm. The only finding that the Judge declined to make concerned the allegation previously made, but not determined, in the private law proceedings, that F1 had been physically abusive towards A and B before they came to England.
The Judge was faced with a mass of information and argument. I do not propose to summarise the judgment and will refer to it only to the extent that it is necessary when considering the grounds of appeal. For present purposes it is enough to say that the Judge accepted the evidence of B, allowing for what she regarded as some understandable inconsistences and exaggerations, that she broadly accepted the allegations made by C, that she found that A's retraction of her allegations was untruthful, and that she found the evidence of M and F2 to be comprehensively unreliable and untruthful.
The appeal
M and F2 have each appealed, with permission granted by Moylan LJ. Their appeals are not symmetrical. F2 appeals from all the findings, while M appeals from some seven findings only, being those that were based on allegations made for the first time in B's oral evidence. These relate to sexual abuse going beyond that previously alleged, and of M's awareness and active participation in the sexual abuse, going beyond a failure to protect. The local authority opposes the appeal, as do F1 and the Children's Guardian.
The grounds of appeal advanced by M are as follows:
(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.
(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.
(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.
(4) The Judge took judicial notice of matters in respect of which it was not open to her to take judicial notice.
F2 also advances grounds of appeal in the same general terms as Grounds 1 and 2, and 4. In addition he argues (and I shall label this as 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.
Although the evidence in the case is complex, the issues for this court on appeal are relatively straightforward. Mr Twomey QC...
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