Q (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Kitchin,Sir Stanley Burnton |
| Judgment Date | 08 July 2014 |
| Neutral Citation | [2014] EWCA Civ 918 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/1118;B4/2014/1120;B4/2014/1021; B4/2014/1121 |
| Date | 08 July 2014 |
[2014] EWCA Civ 918
Lord Justice McFarlane
Lord Justice Kitchin
and
Sir Stanley Burnton
Case No: B4/2014/1118;B4/2014/1120;B4/2014/1021;
B4/2014/0930;B4/2014/1022;B4/2014/0949;
B4/2014/1121
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
EXETER DISTRICT REGISTRY, FAMILY DIVISION
HHJ Tyzack QC
VS12C00068
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Tina Cook QC and Mr Richard Hickmet (instructed by Alletsons Solicitors) for the Appellant
Christopher Sharp QC and Ms Penny Ireland (instructed by Somerset County Council) for the First Respondent
Ms Janet Bazley QC and Ms Bridget McVay (instructed by Butler & Co solicitors) for the Second Respondent
Ms Susan Campbell QC and Ms Jacqueline Ahmed (instructed by Kevin Shearn Family Law Practice Solicitors) for the Third Respondent
Ms Kathryn Skellorn QC (instructed by Neil Griffin & Co) for the Fourth Respondents
Hearing date: 5 June 2014
On 5 th June 2014, following oral submissions, we determined that permission to appeal should be granted and the appeal allowed in relation to a mother's challenge to proceedings which are continuing with respect to two children before His Honour Judge Tyzack QC, sitting as a High Court Judge. As a result of our decision the proceedings are now to be completely re-heard in front of a different tribunal. The purpose of this judgment is to record the reasons that support our decision.
The case concerns two boys, W, born 12 th January 2003 and therefore now aged 11 years, and R, born 9 th August 2012 and therefore now aged 21 months. Proceedings with respect to the children commenced nearly two years ago and comprised, for the first three months, a private law dispute between the two parents. However, the local authority then issued care proceedings and it was in those proceedings that HHJ Tyzack undertook an extended fact finding process involving some 13 days of evidence between July and November 2013 and culminating in an extensive judgment given on 28 th January 2014.
The case has a number of complicating features. As a result of circumstances during the course of her own birth, the mother has a significant learning disability; her IQ is measured at the level of 61 and she is said to function at a mental age of approximately 12 years. In addition the mother also unfortunately suffers from ordinary epilepsy, which is controlled by medication and, separately, from non-epileptic seizures which apparently have a psychological origin for which no medication is provided.
The father originates from Bangladesh and is a practising Muslim. The mother is English and is a practising Jehovah's Witness.
The eldest boy, W, has special needs and is apparently described as being the most complex child in his school amongst those who are registered with special educational needs. Although of ordinary intelligence, he is considered to have a condition which is either somewhere within the autistic spectrum or an attachment disorder or a combination of both.
The couple had generated a level of concern in a number of local authority areas with respect to their care of W and as a result of the fact that they had moved some 10 times in the 10 years between the date of their marriage in 2002 and the date of their separation in 2012.
Private law proceedings between the parties commenced in September 2012 when the mother issued an application for residence orders and a non-molestation order. Within those proceedings she alleged domestic violence against the father and alleged that he had raped her. In October 2012 the mother undertook a four or five hour Achieving Best Evidence interview with the local police in which she raised a range of allegations, including assault and rape, against the father. The father was arrested and granted bail on condition that he had no contact with the mother. However on 13 th November 2012 both parents presented themselves together at the local police station indicating that they wished to reconcile. As a result of this turn of events the local authority sought and obtained the agreement of the maternal grandmother for her to care for the children and not to allow the mother to take the children out without supervision. These care proceedings were then issued on 3 rd December 2012.
Initially it was considered that the mother lacked sufficient mental capacity to act as a litigant in the proceedings and she was therefore represented by the Official Solicitor. However on 7 th June 2013 HHJ Tyzack found that the mother did have capacity and was competent to give evidence.
The fact finding evaluation conducted by the judge involved consideration of a range of allegations made by the mother against the father relating to dominant behaviour, physical assault and sexual assault on her. In addition two specific allegations of potential assault on W were raised together with more general assertions as to the volatile nature of the parent's relationship and their inability to work co-operatively with the social services. The schedule of allegations, together with responses by the parents, runs to 30 pages. In addition the judge was required to consider allegations which the father made against the maternal grandmother. During the course of the hearing the judge heard evidence from all of the key players, including the mother. In view of the intellectual vulnerability of the mother a screen was used to prevent the mother having sight of the father whilst giving evidence and the topics for cross examination were disclosed to her in advance.
The judgment of 28 th January 2014 effectively dismissed each of the allegations made by the mother, whose evidence the judge found to be totally unreliable. He was also highly critical of the maternal grandmother whom he described as "a devious and manipulative woman". He concluded that both the mother and the maternal grandmother had told "wicked lies" to the court. In contrast the judge formed a favourable view of the father both as an individual and as a credible witness.
In order for the court to have jurisdiction to consider making a care order or a supervision order with respect to these children, it was necessary for the local authority to satisfy the "threshold criteria" in Children Act l989, s 31 to the effect that the children were suffering, or were likely to suffer, significant harm as at the date that protective measures were first put in place. That date was identified as 13 th November 2012, being the date on which the local authority first insisted that the maternal grandmother should take over control of the children's care.
In the light of his findings, which were to reject the mother's factual allegations which had hitherto been relied upon by the local authority to establish the threshold, the judge went on, at the conclusion of his judgment, to hold that the threshold criteria were satisfied on the basis that
"both children would be likely to suffer significant harm if living with the mother and [maternal grandmother] because of it being likely that they would become caught up in the emotionally destructive atmosphere of [maternal grandmother's] home in which false allegations have been made by the mother against the father and which have been completely and immediately accepted, uncritically and unquestioningly by [maternal grandmother] and reported as fact to the police."
The judge found that this was a potentially toxic atmosphere for these children to live in and that those circumstances therefore met the threshold criteria.
A further striking feature of this case is that each party, with the exception of the children's guardian, has issued a Notice of Appeal complaining about one aspect or another of the judge's handling of the fact finding exercise. A total of no less than 7 Notices of Appeal have been issued. Having considered the matter on paper, I adjourned the determination of the permission to appeal applications to a one day hearing before the full court with the appeal to follow if any of those applications were granted. Finally, although not a direct applicant for permission to appeal, the children's guardian's skeleton argument supports a number of the points that were raised as criticisms of the judge's handling of the case.
One of the central matters raised by the mother is a complaint that at an early case management hearing ['CMH'] on 20 th March 2013 HHJ Tyzack displayed apparent judicial bias by making a number of clear indications that he had formed a concluded view as to the validity of the mother's allegations and her credibility and the judge had done so during a process which was itself conducted in an unfair manner. The mothers' case is that this premature adverse conclusion infected the judge's whole approach to these proceedings thereafter and came to be replicated and crystallised in his final judgment.
Having identified the mother's claim of apparent judicial bias as being a separate and discrete criticism which, if established, would cut across the entirety of the process before the judge, we proceeded, with the parties' agreement, to hear submissions on that aspect alone. At the conclusion of those submissions we were satisfied that the mother's criticisms were, unfortunately, well founded and that as a result the appeal must be allowed and the entire proceedings re-heard by a different judge.
In the circumstances it has not been necessary for us to give detailed consideration to the various other issues raised in the Notices of Appeal. As a matter of record, however, it is of note that each of the five...
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