Re A (A Child) (Fact-Finding: Speculation)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Year | 2011 |
| Date | 2011 |
| Court | Court of Appeal (Civil Division) |
Wardship proceedings – Fact-finding hearing – Speculation – Child being made ward of court – Fact-finding hearing taking place to determine cross-allegations made by parents – Mother making allegations of sexual misconduct and domestic violence by father – Judge making findings adverse to both parents but accepting core of mother’s allegations – Father challenging certain findings of fact – Whether judge erring by entering into speculation not based on evidence.
A was born in November 2005. His parents were first cousins, the father’s side of the family coming from Iraq and the mother’s side from Iran. Both had leave to remain in the United Kingdom. A was a ward of court and, in accordance with orders of the court, was being looked after by his father and paternal grandmother. A fact-finding hearing took place over twenty days in July 2010, the primary focus of which was the mother’s allegations of grave sexual misconduct throughout the parents’ marriage, domestic violence and threats of ‘honour based’ violence. Various allegations against her emerged during the course of the hearing. Many of the witnesses required interpreters who, at times, failed to agree with each other regarding translations. The witnesses in Iraq gave evidence by a video link on which the visual images frequently broke up, and the witnesses in Iran gave evidence by telephone link. The mother, for security reasons, was not present in the courtroom and gave evidence from an unknown location by video link. The judge in due course made many findings about, and in many cases adverse to, both the parents. The core allegations made by the mother against the father were found to be true, but the judge disbelieved her on many aspects of her evidence, including much of the detail she gave to describe facts which the judge found to be proved. The judge also disbelieved the father on many aspects of his evidence. The father appealed, submitting that the judge had entered into considerable speculation during the course of his judgment which exceeded the permissible drawing of reasonable inference based upon the evidence. He argued that, where it was not possible to make a finding, it was plainly wrong to introduce prejudicial suspicions into the judgment which had the potential, even subconsciously, to influence any person using the judgment as a starting point for future assessment; such suspicions had to be excised from the judgment. Specifically, he challenged the judge’s findings, inter alia, that (i) he had used
the mental health problems of the mother in an attempt to improve their access to greater welfare benefits; (ii) the paternal grandfather had made threats to the life of the mother; (iii) a burn which A had sustained to his bottom whilst in the mother’s care was more likely than not to have been the result of inattentive care, rather than positive assault; and (iv) the father had raped the mother regularly and frequently over the course of their time together and had at times been guilty of physical assaults upon her. In relation to A’s burn, the father invited the court to hold that the mother’s actions, although not deliberate, had been reckless; the evidence of the father’s sister, which had not been challenged in cross-examination, indicated that A’s injury had been sustained by him rolling against a heater upon the mother smacking him.
Held – (1) As a matter of principle, it was obviously correct that findings of fact had to be based on evidence (including inferences that could properly be drawn from the evidence) and not on suspicion or speculation. However, to suggest that speculation and suspicion as to matters upon which no findings had been made should not appear in a judgment following a fact-finding hearing was a very different proposition and one which could not be accepted. In the first place, a judge conducting a fact-finding hearing was entitled to explain his thought processes and his reasoning in whatever seemed to him to be an appropriate and illuminating way. In a case where there was much suspicion and speculation on some matters as well as satisfactory proof on others, it would be not merely artificial but potentially misleading for the judge to suppress all reference to the one while giving appropriate prominence to the other. Secondly, it might be relevant at the subsequent ‘welfare’ hearing to know, and thus for the judge as part of his fact-finding to record, whether a particular matter was not found proved because the judge was satisfied as a matter of fact that it did not happen or whether it was not found proved (and therefore in law is deemed not to have happened) because the party making the assertion had failed to establish it to the relevant standard of proof but in circumstances where there was nonetheless continuing suspicion (see [26], [28]–[30], below).
(2) In the instant case, there was no evidence that the parents had improved their access to greater benefits during their time living together. The finding to that effect could, accordingly, not stand. Equally, the judge’s finding against the paternal grandfather could not stand; the allegation that he had made threats to the mother’s life had never been put to him (see [47]–[48], [65], [75], below).
(3) The judge’s finding that the burn sustained by A was ‘more likely than not to have been the result of inattentive care rather than positive assault’ had to stand but, given that the father’s sister’s account of the injury had not been challenged in cross-examination, it had to be amended to read that the injury was ‘more likely than not to have been the result of inattentive care rather than positive assault, having been caused, as the mother told the father’s sister, when he rolled against the heater when she was smacking
him.’ There was, however, no basis upon which to properly find that the mother’s actions had been reckless. It was a strong thing to invite the court to make an adverse finding against a parent more stringent than the judge had been prepared to make after hearing all the evidence and seeing all the witnesses. Furthermore, a lying denial of responsibility when something had happened did not, of itself, establish precisely what that ‘something’ was. What it was that had happened, who the perpetrator had been, and what his or her motives, intentions and state of mind had been, were different things, and a lie in relation to one did not without more establish the facts in relation to the others (see [54], [59], below).
(4) In the instant case, the father had failed to demonstrate any ground upon which it would be open to the court to disturb the judge’s finding that he had raped the mother regularly and frequently over the course of their time together. The judge had been persuaded that, despite all the mother’s lies, her central case was true; he had been entitled to come to that decision for the reasons which he had given. His findings were not against the weight of the evidence. The father’s attempt to demonstrate that his reasoning was flawed in reality amounted to an invitation to embark upon the kind of textual analysis which was no part of an appellate court’s function; it was not open to the court to take a view of the evidence different from that which had commended itself to the judge. For the same reasons, the judge’s finding that the father had been guilty of physical assaults upon the mother could not be disturbed (see [128]–[130], [137], below).
For those reasons, the appeal would be allowed in part.
Cases referred to in judgmentsA (Child Abuse), Re[2007] EWCA Civ 1058, [2008] 1 FLR 1423.
B (children) (sexual abuse: standard of proof), Re[2008] UKHL 35, [2008] 2 FCR 339, [2008] 4 All ER 1, [2009] AC 11, [2008] 3 WLR 1, [2008] 2 FLR 141.
B (Split Hearing: Jurisdiction), Re [2000] 1 FLR 334, CA.
Biogen Inc v Medeva plc [1997] RPC 1, 38 BMLR 149, HL.
C (A Minor) (Adoption: Parental Agreement), Re[1994] 2 FCR 485, [1993] 2 FLR 260.
D (an infant) (parent’s consent), Re [1977] 1 All ER 145, [1977] AC 602, [1977] 2 WLR 79.
Floyd v John Fairhurst & Co[2004] EWCA Civ 604, [2004] All ER (D) 312 (May).
K, Re, A Local Authority v N[2005] EWHC 2956 (Fam), [2007] 1 FLR 399.
M and R (Minors) (Expert Opinion: Evidence), Re[1996] 2 FCR 617, [1996] 4 All ER 239, [1996] 2 FLR 195, CA.
O and N (children) (non-accidental injury), Re[2003] UKHL 18, [2003] 1 FCR 673, [2003] 2 All ER 305, [2004] 1 AC 523, [2003] 2 WLR 1075, [2003] 1 FLR 1169.
Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.
R v Lucas [1981] 2 All ER 1008, [1981] QB 720, [1981] 3 WLR 120, CA.
S (a child) (abduction: grave risk of harm), Re[2002] EWCA Civ 908, [2002] 3 FCR 43.
AppealThe father appealed against findings of fact made by Roderic Wood J in the course of two judgments ([2010] EWHC 2175 (Fam), [2010] EWHC 2216 (Fam)), which were handed down on 19 and 28 August 2010 respectively, following a hearing which took place in the Family Division of the High Court over twenty days between 5 and 30 July 2010. The proceedings related to his son, who had been made a ward of court, and the primary focus of the hearing had been the mother’s allegations of grave sexual misconduct throughout the parents’ marriage, domestic violence and threats of ‘honour based’ violence. On 14 December 2010, the Court of Appeal handed down a preliminary judgment ([2010] EWCA Civ 1413, [2010] All ER (D) 156 (Dec)), with full reasons to follow. The facts are set out in the judgment of Munby LJ.
Jane Crowley QC and Kate Purkiss (instructed by Goodman Ray) for the father.
Anthony Hayden QC and Hassan Khan (instructed by Dawson Cornwell) for the mother.
MUNBY LJ(giving the first judgment at the invitation of Richards LJ).
[1] We are concerned with a little boy, A, who was born in November 2005. His parents are both Kurdish. They are first cousins (the paternal grandfather and maternal grandmother are siblings), the father’s side of the family coming...
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