PR v Jes
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 29 March 2019 |
| Neutral Citation | [2019] EWHC 791 (Fam) |
| Docket Number | Case No: 2018/0125 |
| Court | Family Division |
| Date | 29 March 2019 |
[2019] EWHC 791 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Williams
Case No: 2018/0125
and
Lucy Hendry (instructed by Laceys Solicitors) for the Applicant Alev Giz (instructed by Philcox Gray) for the 1st Respondent
The 2 nd Respondent did not appear and was not represented
Hearing dates: 14th – 15th March 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 public. 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.
This is my judgment on the appeal of the appellant PR in respect of a decision of HHJ Meston QC given on 11 July 2018. The respondent to the appeal is JES. They are the father and mother of a little girl, T who was born in June 2011. I shall refer to the parties throughout this judgment as the father, the mother, and the child. I hope the parties will forgive me for using this shorthand; I do it to assist in maintaining the anonymity of the parties.
The child was a party to the proceedings in the court below but her Guardian has chosen to play no part in the appeal on the basis that the appeal is based on legal arguments. I shall return to this point.
On 11 July 2018, HHJ Meston QC handed down a judgment in which at paragraphs 89 to 95 he made findings against the father. These findings cross-referred to some of those set out in a Schedule filed on behalf of the mother. Leaving aside some of the excessive detail with which the schedule was burdened the findings in headline terms are as follows:
i) On at least 2 occasions, [15 November and 13 December 2015] F has touched the child around the area of her bottom, which was inappropriate. F knew that it was inappropriate. F's actions were sexually motivated. If not sexually motivated, such washing was clearly inappropriate and has caused physical psychological and emotional harm to F.
ii) On one or more unspecified occasions, F has touched the child around her genital area which was inappropriate. F knew that it was inappropriate. F's actions were sexually motivated. If not sexually motivated, such touching was clearly inappropriate and has caused physical, psychological and emotional harm to the child.
iii) On one or more unspecified occasions, F has put his finger inside the child's bottom and/or the genital area knowing that it was inappropriate or sexually motivated. If not sexually motivated, such digital penetration/touching was clearly inappropriate and has caused physical psychological and emotional harm to the child.
iv) The child has been manipulated to ‘not talk’ about the alleged abuse by F. She has been told that the washing/touching did not happen, to keep it a secret, to ‘zip it’.
The father sought permission to appeal from HHJ Meston QC which was refused on 13 July 2018. At that time the basis of the application for permission to appeal was that the basis of the judge's assessment of the reliability and the credibility of the child and of each of the parents was flawed. [A77] The judge refused permission to appeal stating
“ I have again reviewed the material that was before the court in the 2 comprehensive hearings. I do not consider that the proposed appeal has a real prospect of success or that there is any other compelling reason to grant permission.”
On 1 August 2018 the father filed an appeal against those findings and renewed his application for permission to appeal. On 13 August 2018 Mrs Justice Knowles granted permission to appeal on all grounds and without conditions. A time estimate of one day was given for the hearing of the appeal which for reasons which I am unclear about was listed for January 2019; one year since the fact-finding had been undertaken; albeit only 6 months since the judgment. The delay that has plagued the parties and the child in the resolution of this litigation is staggering. In preparation for that hearing the parties filed an appeal bundle which comprised some 8 lever arch files. In addition the court was informed that an audio-visual recording of the child's ABE interview would need to be viewed by the judge hearing the appeal. The view was taken that a one-day time estimate was insufficient in the circumstances and the matter was adjourned to a two-day hearing on the 14 and 15 March. One day was allowed for judicial reading and one day for the hearing of submissions and the delivery of judgment. On 13 March a ‘Suggested Reading List’ was submitted by counsel. This appeared to comprise of several thousand pages of material which together with audio-visual material would have taken several days to read. I therefore directed the parties to file a list of ‘Essential reading’ which it would be possible to undertake in the one day allowed. Unfortunately when the document was supplied it was the same list of suggested reading now entitled ‘agreed suggested essential reading list’ but highlighting documents requiring somewhere between 20 and 30 hours of reading excluding the parties' Skeleton Arguments or the audio-visual material. I hardly need to say how deeply unhelpful this has been in seeking to prepare for the appeal. It is incumbent on the legal representatives of the parties to identify those documents which the judge MUST (hence the word Essential) read in the time allowed for reading and to provide a list which can be undertaken in that time. If the parties consider that the reading time allowed is wholly insufficient they should notify the court. Alternatively they should tailor the list of Essential Reading to fit within the time allowed. Bearing in mind an appeal is a review of the first instance decision not a rehearing and bearing in mind the appellate approach to challenges to findings of fact made at first instance it should be perfectly possible to identify a manageable list of essential reading. Belatedly the parties did agree some essential reading which I undertook along with viewing the ABE interview.
Grounds of Appeal
The grounds of appeal were settled by Ms Brannigan QC and Ms Hendry. They are as follows:
The learned judge has erred as a matter of principle and fact in making findings that the appellant had sexually abused his daughter […]
Ground 1
The learned circuit judge failed properly or at all to apply the relevant legal principles to the 2 nd fact-finding exercise. By failing to apply such principles the court adopted an approach to its evaluation of the evidence in the 2 nd fact-finding hearing which was improper and flawed.
Ground 2
The learned circuit judge failed to analyse the allegations made following the judgment of 31 January 2017 in the light of the totality of the evidence before the court and consequently placed inappropriate evidential weight on the allegations made by [the child] in her ABE interview of 16 may 2017. Specifically the court
(i) failed to set the allegations made post January 2017 in the context of all that had gone before. Such an analysis properly undertaken should have led the court to the overwhelming conclusion that no weight could be placed on the allegations made by [the child] either in her ABE interview or to the CEDAR worker in April/May 2017.
(ii) failed to make findings of fact which would have significantly informed the overall fact-finding exercise
Ground 3
The learned circuit judge undertook an evaluation as to the parents' credibility which was flawed and inconsistent with the findings previously made by the court
The grounds are elaborated and argued in a 19-page skeleton argument which is accompanied by a 21 page annex which comprises a chronology and analysis of the child's account. I shall turn to the arguments deployed on behalf of the appellant father in my analysis of the grounds later in this judgment.
The father invites the court to allow the appeal and to (I think) substitute its own decisions. Although Ms Brannigan QC and Ms Hendry recognise that it would be more usual to remit the case to a different judge for determination, they also submit that I could refuse to remit it. This is on the basis of a submission that the allegations of the child are so flawed that no court properly directed could conclude that the child had been sexually abused by the father.
Ms Giz had filed a skeleton argument supporting the judge's decision and on behalf of the mother invites me to dismiss the appeal. In the event that it were to be allowed she submits that it would need to be remitted for rehearing.
Nothing was filed on behalf of the child herself.
I heard submissions from Ms Hendry on behalf of the father and from Ms Giz on behalf of the mother over the course of the 2 nd day of the appeal. Their submissions were focused and succinct.
Inevitably given the nature of the appeal, Ms Hendry had to delve in some detail into the long chronology dating from 15 November 2015 through to 16 May 2017 over which evidence had emerged from the child or other sources and which bore upon the ultimate issue. Ms Hendry produced a detailed annex in the form of an annotated chronology which she relied upon to demonstrate that the judgment of 11 July 2018 had not in fact applied the correct approach to the determination of the allegations and had...
To continue reading
Request your trial
-
PR v JS
...on the appeal which ran to just under 100 paragraphs. It is reported as PR v JES and TER (Appeal: Sexual Abuse, Fact Finding) [2019] EWHC 791 (Fam). 15 For reasons which will be clear from a reading of that judgment, Williams J set aside in their entirety all the trial judge's findings and......