K v L
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson |
| Judgment Date | 15 January 2010 |
| Neutral Citation | [2010] EWCA Civ 125 |
| Docket Number | Case No: B4/2009/2354 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 2010 |
[2010] EWCA Civ 125
(Mr Justice Moylan)
Before: Lord Justice Wilson
Case No: B4/2009/2354
(LOWER COURT No: FD07D05911)
IN THE SENIOR COURTS OF ENGLAND &WALES
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT,
FAMILY DIVISION, PRINCIPAL REGISTRY
Miss Alison Ball QC (instructed by Messrs Farrell Matthews and Weir) appeared on behalf of the Applicant“husband”.
The Respondent“wife” did not appear and was not represented.
Lord Justice Wilson:
Appeals and collateral applications are in principle heard in public in this court. But gentlemen of the press who listen to this judgment will, I think, understand why yesterday I made an order for the anonymity of the parties and for non-disclosure of any material, such as addresses, which might lead to their public identification; for at the heart of the problems in this case lie two children who have been sexually abused and it would be very important for them that their identities be never publicised.
A husband, as it will be convenient to call him notwithstanding the grant of a decree absolute of divorce, applies by Miss Ball QC, who has not previously represented him, for permission to appeal—and for an extension of time for appealing—against an order on his application for ancillary relief against the wife, as it will be convenient to call her, made by Mr Justice Moylan, sitting in the High Court, Family Division, on 4 June 2009. It follows that the husband's appellant's notice should have been filed by 25 June 2009. In fact, then appearing in person, the husband filed it only on 29 September 2009 and so it is more than three months out of time. The husband is detained in Wandsworth prison and he puts forward reasons for the delay which in my view render the despatch of his application for an extension borderline. Nevertheless it seems convenient to put to one side his need for an extension of time and to concentrate on whether he should be granted substantive permission to appeal. For any grant of permission would probably tip the balance in favour of granting the extension. Conversely, were permission not granted, the issue of an extension would be academic.
The circumstances of the present case are, I am happy to say, extremely rare. But their extreme rarity is of no comfort whatever to the wife and her three children by a former marriage and is of no assistance whatever to the children of two of her children. Although other features weighed heavily in the judge's determination, the stark feature of the case is reflected in the circumstances which lead the husband, now aged 65, to be in prison. For in 2007 he pleaded guilty to 15 counts of sexually assaulting two of the wife's grandchildren on a number of occasions between 2004 and 2007, of taking indecent photographs of one of them and of related offences. He was sentenced to a minimum of three years' imprisonment and hopes to obtain parole later this year. The judge did not accept the husband's assertion that in fact he was guilty of sexual abuse only of one of the grandchildren and that in relation to the other he had for various reasons pleaded guilty to a charge of which he was not guilty. The historical facts are that:
(a) the wife was born in 1938 and is now aged 71;
(b) the parties married in 1983 ;
(c) for the wife it was a second marriage; at that time the three children of her first marriage were all minors and they became children of the family;
(d) these three children all now have children of their own;
(e) the wife's father, who died shortly after the marriage, had given her substantial assets during his life and left her further substantial assets by will;
(f) it was the wealth received by the wife from her father which funded the comfortable lifestyle of the family and enabled the husband to relinquish paid employment at around the time of the marriage and thereafter to pursue—in England and also to some extent abroad—literary and artistic interests of an essentially unremunerative kind;
(g) at the time of the marriage or subsequently the wife transferred into their joint names their valuable home in London which she had acquired with money received from her father;
(h) in 1987 the parties purchased in their joint names a small property abroad;
(i) in 1993 there was a separation between them, followed by a reconciliation made pursuant to conditions which the wife demanded and to which, following the receipt of legal advice, the husband subscribed: the agreement was not only that he would transfer his interest in the home in London back to the wife but also that he thereby reiterated his previous assurance to her that, were they again to separate, he would not seek to take advantage of the fact that her wealth was far greater than his;
(j) the husband duly joined in transferring title to the home back into the sole name of the wife; and
(k) the husband's sexual abuse of his two step-granddaughters was discovered in 2007, whereupon of course the separation between the parties took place, swiftly followed by the husband's conviction and imprisonment.
The wife alleged that the husband had been guilty of other gravely wrongful sexual acts in relation to her grandchildren in addition to those for which he had been convicted; and indeed that he had so acted in relation also to other children. In that regard much of her evidence came from material discovered by the police in the husband's computer. For example the husband had, in chat room logs, been communicating over the internet with other paedophiles and purporting to describe his sexual abuse not only of the two grandchildren but of other children including children abroad. It was the husband's case before the judge that much, if not most, of the content of his communications was no more than disgusting fantasy into which he had been drawn. The judge was careful not to make findings against him in this regard across the board. He did, however, find that the husband had sent to another person via the internet sexual photographs of the two grandchildren whom he had abused, accompanied by disclosure of their first names. The judge also made a finding against the husband in relation to an incident which one of the wife's daughters had raised in her written statement. For some reason the judge declined in his judgment to spell out the daughter's allegation, other than to say that it had occurred in Paris, when—perhaps as a young woman?—she had gone into the husband's bedroom one morning. The husband denied the incident but the judge found that it had occurred. The daughter's statement has not been included in the papers filed for my use but Miss Ball tells me that in essence the daughter's allegation was that the husband had touched her breast. It is clear that the judge considered it serious enough to be taken into account together with the gross misconduct towards the granddaughters which had largely been the subject of the criminal proceedings.
The hearing before the judge proceeded for about seven days in May and June 2009. Oral evidence was given by the wife, by the two daughters whose children the husband had abused, and by the husband himself. Unable by then to tolerate the husband's presence in the same room with her, the wife gave her oral evidence by video-link. The judge found that she was a sincere witness who had been deeply traumatised by the consequences of the husband's conduct. She said that the husband had taken advantage of her marriage to him in order to benefit from her wealth and in particular to prey upon her children and subsequently upon her grandchildren; that the husband had betrayed her in a sickening manner; that she was struggling to come to terms with the dreadful damage which he had inflicted upon her granddaughters, the precise extent of which might not be visible for many years; and that she bitterly regretted her decision to...
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DP v EP (Conduct; Economic Abuse; Needs)
...that conduct without a financially measurable consequence has impacted on the distribution exercise are rare, but exist. In K v L [2010] EWCA Civ 125 the husband had been imprisoned for offences of sexual assault of the wife's grandchildren. Wilson LJ, as he then was, refused him permissio......