JH v MF
| Jurisdiction | England & Wales |
| Judge | Ms Justice Russell DBE |
| Judgment Date | 22 January 2020 |
| Neutral Citation | [2020] EWHC 86 (Fam) |
| Date | 22 January 2020 |
| Docket Number | Case No: 2019/0141 |
| Court | Family Division |
[2020] EWHC 86 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE CENTRAL FAMILY COURT ON AN ORDER
OF HIS HONOUR JUDGE TOLSON QC OF 8TH AUGUST 2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Justice Russell DBE
Case No: 2019/0141
Ms Katherine Gittins (instructed by Adams Harrison Solicitors) for the Appellant JH
The Respondent MF did not attend and was not represented
Hearing date: 5 th December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Honourable
Introduction
This is an appeal from an order made on 8 th August 2019 following a fact-finding trial in Children Act (CA) 1989 proceedings for child arrangement orders at the Central Family Court in London before the Designated Family Judge. The case concerned complaints of domestic abuse including of the most serious sexual assault. The Appellant (JH who had made the complaints) was represented by counsel, Ms Piskolti, and gave evidence. The Respondent (MF) was unrepresented (but had assistance from a McKenzie friend throughout) and the judge carried out the “cross-examination” of JH. This case is yet another example of the difficulties encountered by litigants when public funding is not available to the party against whom complaints are made; and of the way in which justice or a fair trial is compromised when the judge is required to enter the arena. The judge found against the Appellant.
The Appellant appealed against the judgment and order; permission was granted by Mrs Justice Lieven on 25 th October 2019 (who gave permission to appeal four days out of time). In her written reasons Lieven J said that she had granted “permission to appeal on each of the grounds”, having set out each of the seven grounds advanced on behalf of the Appellant. In essence I agree with the observations made by Lieven J in granting permission to appeal but also find that the judge's conduct of the hearing was fundamentally flawed and unjust for procedural irregularity as set out in Family Procedure Rules (FPR) 2010 (Cf. FPR rule 30.12(3)); and the appeal is allowed for that reason and the reasons set out in full below.
The Appellant was represented by counsel, Ms Gittins, before me at the hearing in the Royal Courts of Justice on 5 th December 2019, trial counsel (Ms Piskolti) had prepared the written application for permission to appeal and the grounds of appeal referred to in this judgment. The Respondent did not attend the hearing. The Appellant's solicitor was contacted by a supporter of the Respondent on 6 th November 2019 who said that the Respondent would not attend the hearing on 4 th December 2019 because the appeal was not directed against the Respondent but against the judge. The Respondent himself phoned the Appellant's solicitor on 2 nd December 2019 to repeat this message and was aware of the change to the hearing date. The court received no written or oral submissions on behalf of the Respondent.
The law. There is no argument in respect of the law which applies in this appeal. I have been reminded of, and keep in mind, the relevant case law; it is unnecessary for me to set it out in full. The approach of the court is succinctly and accurately set out by Lieven J when allowing the application and I would adopt it. In particular, I keep in mind the words of Sir James Munby P in Re F (Children) [2016] EWCA Civ 546, at paragraph 22, “Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228 para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist”. Nonetheless some of the analysis, commentary and the judgment in the instant case requires particular scrutiny.
To paraphrase the seminal speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, I am well aware that “The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case.” And that “An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”
Background and history
The chronological background and of the case as set out here were taken from the chronology prepared for the court by those representing the Appellant which set out the complaints made about the Respondent and involvement of the Police. The Appellant (then only 17 years old) met the Respondent (then 23) in 2013 when they started their relationship. The Appellant moved in with the Respondent shortly after they met. Prior to their meeting police records indicate that there had been complaints made about the Respondent's violent and abusive behaviour by his own mother, his brother, his aunt and a previous partner. According to the police records which were before the Family Court the parties first came to the attention of the Police in June 2014 as a result of third-party contact or referral; the Respondent was said to have been intoxicated, aggressive and abusive to the Appellant. The police records show a further incident including another verbal altercation in September 2014. The child who is the subject of these proceedings (C now 4 years and 11 months old) was born on 2 nd January 2015.
There were police records concerning continuing domestic abuse in 2015. Specifically, there were complaints of domestic abuse by the Appellant in February of that year, followed in April by a record of an incident when the Respondent was said to have hit the Appellant on her head. She had fled to a neighbour's home and the police were called. The Respondent was arrested for battery and released on bail. In May 2015 the Appellant contacted the police and retracted her statement. Nonetheless the Police made a referral to Social Services because of domestic abuse. Social Services were recorded to have responded that C would be placed on a Child in Need plan. The Appellant subsequently moved to another local authority area and the case was closed.
In May 2016 police recorded a phone call from the Appellant following another incident of domestic abuse; the Appellant was reported to have again fled the family home but without C (then an infant) who was locked inside with the Respondent. In late August 2016 the Appellant had reported to the Police a history of domestic abuse including sexual assault by penetration and was categorised as a high-risk victim. The Respondent was again arrested and released on bail. The Appellant left the family home and moved into a refuge with C. The Respondent then reported the Appellant to Social Services and made allegations about her inability to care for C; he called the Police to report her “missing”.
Meanwhile the Police had carried out a check on the Respondent following a third-party call raising concerns about him and alleged suicide threats. A day later a neighbour of the parties called the Police to complain of harassment and threats by the Respondent and his mother.
The Appellant was ABE interviewed by the Police at the end of August 2016. A third-party witness (AP) provided a statement to the Police setting out what she knew of the Appellant's complaints about the Respondent's abusive behaviour towards her. The Respondent was again arrested, this time for Controlling and Coercive Domestic Abuse contrary to s76 of the Serious Crime Act 2015 and interviewed under caution about that offence and the sexual assault by penetration, a serious offence under the Sexual Offences Act 2003. The CPS decided not to take further action over the sexual assault on 27 th September 2017 the reasons for this decision are unknown.
When the Respondent applied for a child arrangements order on 15 th October 2018, it was more than two years after the Appellant and C had left him and gone to a refuge away from what had been...
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