A (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lady Justice Nicola Davies,Lord Justice Philips |
| Judgment Date | 22 September 2020 |
| Neutral Citation | [2020] EWCA Civ 1230 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: B4/2020/0689,0702 & 0703 |
| Date | 22 September 2020 |
[2020] EWCA Civ 1230
Lady Justice King
Lady Justice Nicola Davies
and
Lord Justice Philips
Case Nos: B4/2020/0689,0702 & 0703
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
SITTING AT WEST LONDON
HER HONOUR JUDGE JACKLIN QC
ZW18P00161
Royal Courts of Justice
Strand, London, WC2A 2LL
Will Tyler QC and Joanne Ecob (instructed by Delphine Philip Law LTD) for the Appellant
Samantha King QC (instructed by Bross Bennet LLP) for the Respondent
Hearing dates: 28 th July 2020
Approved Judgment
This is an appeal against an order made on 6 January 2020 by Her Honour Judge Jacklin QC at the conclusion of a fact-finding hearing that was conducted within private law proceedings. The Appellant (“father”) sought contact with his child, A, who was born in 2011 and is now aged 9 years. The Respondent (“mother”) opposed all forms of contact consequent upon, what she described as, the father's “abhorrent behaviour” during the latter part of their relationship. The judge heard evidence over 4 days, including oral evidence from both the mother and father. At the conclusion of the case, the judge made the following findings:
i) The maternal grandfather died from thallium poisoning;
ii) The thallium that caused the death was administered deliberately by [the father] on 11 September 2012;
iii) The maternal grandmother and mother were seriously unwell in September and October 2012 as a result of thallium poising;
iv) The thallium that caused their illness was administered deliberately by [the father] on 11 September 2012;
v) [The father] was aware that he had administered the thallium and [was] therefore aware of the cause of the mother's illness in September/October 2012;
vi) Being so aware, [the father] failed to inform the medics who saw the mother in the various hospitals she visited and failed to pursue appropriate medical treatment with the necessary urgency.
In summary, therefore, the judge found that the father had poisoned each of: his partner's father (“the grandfather”); his partner's mother (“the grandmother”); and his partner (“the mother”) with thallium, resulting in the death of the grandfather and the grandmother and the mother becoming very seriously ill. Thallium is a highly toxic, odourless and tasteless heavy metal which, until banned some years ago, was used in rat poison.
The appeal before the court is what is known within the profession as a ‘reasons appeal’. It is being submitted by Mr Tyler QC, on behalf of the father, that the judge failed properly to analyse certain critical evidence and this failure went to the heart of the conclusions she reached, rendering the judge's findings unsafe.
Before moving on to consider the background, counsels' submissions and our conclusions, I indicate immediately that it is the court's intention to allow the appeal and to remit the matter for rehearing before a High Court Judge. In those circumstances, and in order to avoid any risk of prejudicing the retrial, it is not my intention within this judgment to give significant detail of the evidence which was before the judge beyond that which is strictly necessary to demonstrate how I have reached my conclusion that the judge's order cannot stand.
Background
Both parents were born and brought up in Bulgaria. The mother has lived in England for many years and is now a British citizen. The father is doctor who qualified in Bulgaria, but came to work in the UK in a number of years ago after the parents had met whilst the mother was visiting her parents in Bulgaria. The parents lived together in a property bought with the help of the maternal grandparents, and A was born in 2011.
There were difficulties in the relationship between the parents even at this early stage. The father and the grandmother did not get on, although the grandmother stayed with the couple between December 2010 and January 2011 to help to renovate the house, and then again from October 2011 to April 2012. Between May and July 2012, A stayed with his grandparents in Bulgaria whilst the parents remained in England and had couples counselling.
In August the couple travelled to Bulgaria by car. This marked a change of pattern as previously all trips had been by air and the routine had been that, upon their arrival in Bulgaria, the grandfather would lend the family his car to enable them to visit the paternal family in another part of the country.
On this occasion, the parents stayed one night with the maternal grandparents where they collected A before going on to visit the paternal family. They returned to the maternal grandparents' summer home on 8 September 2012. At that time, the intention was that the family would leave on the morning of 12 September, stay overnight in Vienna on the first night, and Calais the next (13 September) prior to catching a ferry home the following day.
It was the events of the 11 September 2012 upon which the finding of fact hearing largely focused. It was the custom of the grandparents to get up at about 6:00am to work in their garden. They were in the habit of making coffee first thing and drinking it on the veranda in a leisurely way during the course of the morning. On this particular morning, the mother called to the grandmother from her bedroom saying that she did not want coffee and would stay in bed for a while. The father, in contrast, did not usually get up before 10:00am. On this morning he got up at about 7:30am after the grandmother had prepared the coffee and poured it out for herself and her husband.
The mother, finding that she could not get back to sleep, came on to the veranda, lit a cigarette and sat down on a swing seat with the father. Seeing her mother's coffee, the mother changed her mind about wanting a drink and picked up her mother's mug of coffee and drank about half of it. During the course of the morning, the grandmother drank the other half of her coffee and the grandfather, as was his habit, sipped his from time to time until he had finished his drink.
The mother's case at trial was that when she had come on to the veranda, the father had his back to her and she could see he was ‘leaning over’ the table where the two cups of coffee were placed. He did not turn to greet her but remained where he was for some moments before turning around. In so far as this evidence was concerned, the judge made the following findings:
“72. I do not accept that the mother concocted this evidence. She was thoroughly cross-examined on this evidence and it was clear to me that she was recounting an event that she recalled. She was a truthful witness and I accept her account.”
Returning to the undisputed events of 11 September, the family had dinner at about 7:00pm that evening. This was a meal at which, as was their custom, they ate food set out on the table, although each person may have chosen different things to eat from the various dishes.
By this time, the early evening of 11 September, the grandfather was becoming ill. The mother was also feeling unwell but believed that she had caught a viral infection from A. The judge found that, due to the father's insistence, the family set off on the long journey back to the UK that night rather than the following morning as planned. The mother, father and A therefore left at approximately 10:00pm, notwithstanding that no accommodation had been booked until the following night. The father's case was that the car was overloaded and he wished to give himself plenty of time for the journey.
The grandfather's health deteriorated overnight and he was admitted to hospital in the early hours of the morning. He died at 9:15pm on 13 September. The cause of death was given as an ischemic stroke causing heart failure.
Meanwhile, both the mother and grandmother's conditions deteriorated. Neither the grandmother nor the mother told each other how unwell they felt, not wishing to cause additional anxiety to the other on top of the shock and distress caused by the unexpected death of the grandfather. The mother felt so unwell that she went to Central Middlesex Hospital immediately upon returning to the UK where she remained for a week undergoing tests.
After discharge, the mother's condition continued to deteriorate. On 23 September, the mother attended the Royal Free Hospital where the suggested diagnosis was acute stress reaction arising from the sudden loss of her father. The mother was discharged from the Royal Free on 26 September. The following day, the mother noticed that her hair was falling out. She returned to the Royal Free raising the possibility that she had been poisoned. She was sent away with a similar diagnosis, namely that this was stress related.
By this time, however, the grandmother was also experiencing the same symptoms including hair loss. Fortunately, a medical neighbour of the grandmother's, having seen the condition she was in, including the hair loss, became worried that she may have been poisoned. The neighbour contacted, and then described the symptoms to, the head of forensic medicine at the University Hospital in Star Zagora. The advice received was that the grandmother should go immediately to the Military Medical Academy in Sofia where they would be able to test for serious poisoning.
Meanwhile in England on 29 September, the mother contacted a friend (IS) telling him she feared that she had been poisoned but felt too unwell to research her symptoms. Her friend came back telling her that his research indicated that she may have been poisoned by thallium. The mother herself then looked on the internet where the possibility was confirmed, and “Prussian Blue” (potassium ferric hexacyanoferrate) was identified as the antidote. The mother then went to Charing Cross Hospital where there is a toxicology laboratory and tests were taken for poisoning.
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