M (Children)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ryder,Lady Justice Rafferty,Lord Justice Sullivan |
| Judgment Date | 20 March 2013 |
| Neutral Citation | [2013] EWCA Civ 388 |
| Date | 20 March 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2012/2851 |
[2013] EWCA Civ 388
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
(HIS HONOUR JUDGE WATSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lady Justice Rafferty
and
Mr Justice Ryder
Case No: B4/2012/2851
Mr William Tyler (instructed by Emery Johnson Solicitors) appeared on behalf of the Appellant.
Mr Gavin Lyon (instructed by Heer Manak Solicitors) appeared on behalf of the Respondent.
This is an appeal against six findings of fact made by HHJ Hilary Watson on 12 October 2012 at a fact-finding hearing in the Coventry County Court in private law children proceedings under the Children Act 1989. The children concerned are a boy, who I shall refer to as B, who was born on 25 September 2005, so that he is now seven, and a girl who I shall refer to as G, who was born on 13 December 2006; she is now six. Their parents, Ms M and Mr M, are married, but separated in November 2009, and we are told are obtaining a divorce. The issue between the parties is the contact to be afforded to father with the children. The fact-finding hearing has had to wait an inordinate time to be completed. It first began in January 2012 before a District Judge, was unable to resume part heard before July 2012, and then had to be abandoned and started again before HHJ Watson in October last year. That was unacceptable. The hearing took five days, and the judge heard evidence from the mother and the father alone. She also had the benefit of a transcript of the evidence heard by the District Judge.
The findings complained of are these. First, that during 2008 father raped the mother. Second, that on 11 November 2009 father assaulted the mother. Third, that the father's twice smacked the child, B, with his hand. Fourth, that father told the mother that the child G, sitting on his knee, would cause him to have an erection. Fifth, that the sexual allegations made by the mother in respect of the father's interest in child, G, were not maliciously made. And sixth, that father was responsible for a message sent from the mother's Facebook account in September 2009.
Mr Tyler, who appears on behalf of father, has carefully and skilfully analysed the evidence. His submissions were powerful and attractive. He says that each finding was demonstrable contrary to the weight of the evidence, and that is plainly wrong. He further submits that the judge was plainly wrong to assess the mother as being "for the most part a truthful witness", an assessment which he submits is manifestly at odds with the judge's own findings about other aspects of her evidence, which was false. He submits that the judge failed to analyse appropriately or at all important and significant inconsistencies in the mother's various accounts in relation to her allegations, and failed to analyse appropriately or at all the implications of the fact that other allegations were falsely made. Finally, he submits that some of the judge's findings were not supported by the evidence.
In reply, Mr Lyon has provided us with a careful and detailed skeleton argument, in which he submits that the findings arose out of an entirely proper exercise of weighing the available evidence, and were within the judge's broad discretion. In particular, although the judge found that mother's evidence contained elements of exaggeration and embellishment, at the core were allegations of evident truth. In contrast, her assessment of father's absolute denials of violence, rape and other behaviours, and his own inconsistent and contradictory evidence and admitted lies to the court, fully entitled the judge to prefer the evidence of the mother. He also submits that none of the findings was unsupported by evidence, merely that some allegations were proved in part, or to a lesser degree of gravity or severity than alleged.
It is unnecessary to set out at length the well-known principles upon which this court acts. It is sufficient to say that an appellate court may only interfere where the decision in question exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong. The line of authority from G v G (Minors: Custody Appeal) [1985] 1 WLR 647 is clear. Furthermore, the observations of Lord Hoffmann in Piglowska v Piglowski [1995] 2 FLR 765 at 784 remain as strong as ever. The first instance judge has seen the parties and the other witnesses. Findings are inherently an incomplete statement of the impression which was made on the judge by the primary evidence:
"His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
That passage was itself a quotation by Lord Hoffmann from Biogen Inc v Medeva PLC [1997] RPC 1.
When any fact-finding court is faced with the evidence of the parties and little or no corroborating or circumstantial material, it is required to make a decision based on its assessment of whose evidence it is going to place greater weight upon. The evidence either will or will not be sufficient to prove the facts in issue to the appropriate standard. As has been said many times in one form or another, the judge is uniquely placed to assess credibility, demeanour, themes in evidence, perceived cultural imperatives, family interactions and relationships. Insofar as complaint is made about the judge's reasoning for so doing, I can do not better than repeat what Munby LJ, as he then was, said in A & L (Children) [2011] EWCA Civ 1611, at paragraphs 34 and 35:
"34. There are two principles in play here. The first is that explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372. So far as concerns a judge's approach to a case and his reasoning his 'reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.' An appellate court, Lord Hoffmann continued, '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.'
35. The other principle, relating to the adequacy of a judge's expressed reasons, is that explained by Lord Phillips of Matravers MR in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [17]-[21]. For present purposes it suffices to refer to how Thorpe LJ put it in Re B (Appeal: Lack of Reasons) [2003] ECA Civ 881, [2003] 2 FLR 1035, para [11]:
'the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?'
Thorpe LJ had previously observed that one should not ignore the 'seniority and experience' of the particular judge, the 'huge virtue in brevity of judgment', and that the 'more experienced the judge the more likely it is that he may display the virtue of brevity.' I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons."
It is not necessary to give a reason for every reason. Insofar as that is sometimes required, it is when there would otherwise be a logically fatal inconsistency which would render the judge's acceptance of evidence plainly wrong. In cases of this kind, there is often little more that a judge can say on a particular issue than that he believes X or disbelieves Y.
There is one other matter of law which may be of assistance. I raise it with some hesitation, but it may be thought to be helpful. HHJ Watson did not remind herself of what is colloquially known as a 'Lucas' direction. She had no need to do so, and there is no complaint about that. But some fact-finding judges...
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