Re D (Children)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker,Lady Justice Black,Lord Justice Patten |
| Judgment Date | 11 February 2016 |
| Neutral Citation | [2016] EWCA Civ 89 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/1367 |
| Date | 11 February 2016 |
[2016] EWCA Civ 89
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT WEST LONDON
RECORDER WOOD QC
KT12P00084
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lady Justice Black
and
Mr Justice Baker
Case No: B4/2015/1367
Simon Rowbotham (instructed through the Northern Circuit Free Representation and Advice Scheme)) for the Appellant father
Francis Wilkinson (instructed through the Bar Pro Bono Unit) for the First Respondent mother
Jerry Fitzpatrick (instructed by NYAS) for the children by their guardian
Hearing date: 17 th December 2015
By a Notice of Appeal dated 24 th April 2015, a father seeks permission to appeal against orders made on 3 rd April by Miss Recorder Wood QC in long-running proceedings involving his two children, a girl I, now aged 9, and a boy, L, now aged 6. His grounds of appeal principally focus upon the recorder's order that his contact with his children should be supervised and her imposition of an order under section 91(14) Children Act 1989. He also challenges an order that the recorder made as to payment of the costs of an independent social worker who was engaged to supervise his contact visits.
By order of Ryder LJ dated 16 th June 2015, the application was adjourned to the full Court, with the appeal to follow if permission was granted. The hearing before the full Court took place on 17 th December 2015 following which judgment was reserved.
The Court was assisted at the hearing by counsel on behalf of the father, mother and guardian representing the children, all of whom appeared pro bono. We are grateful to all of them, and in particular to Mr. Simon Rowbotham who took on the task of re-formulating the arguments on behalf of the father (who had appeared in person before the recorder and had filed the Notice of Appeal and initial skeleton argument) and presented the arguments in support of the application in writing and orally with clarity and thoroughness.
Summary of facts
The parties met in 2004 and were married in 2006. I was born on 15 th November 2006, and L was born on 17 th February 2009. The parties separated in 2010, the father petitioned for divorce in March 2011, and decree nisi was pronounced in June of that year and made absolute the following March. Financial issues were concluded by a consent order in May 2012. Issues concerning the children, however, have been the subject of ongoing proceedings for nearly three years which, save for an initial case management hearing, have been conducted by Miss Recorder Wood.
It has been the mother's case throughout these proceedings that she was repeatedly subjected to acts of physical violence by the father during their marriage. The mother alleged that the father had been violent towards her in a series of incidents throughout the marriage dating back to when she was pregnant with I. It was her case that on occasions in the course of arguments he had pushed her, kicked her, thrown her across the room, put his hands round her neck and, on several occasions, trapped her between the door and door frame and then repeatedly slammed the door against her. Some of these assaults had occurred in the presence of the children who had on occasions attempted to intervene to protect their mother. Ultimately, at the beginning of 2012, the mother went to the police and filed a complaint. The father was interviewed, arrested and bailed pending further investigations. One of the conditions of the bail was that he should not return to the family home. He went to live with his own mother in another part of the country and has remained there ever since. In the event, this investigation did not lead to a criminal prosecution.
On 3 rd January 2012, the mother applied ex-parte to the family proceedings court for a non-molestation and occupation order under the Family Law Act 1996. The magistrates made the orders and transferred the proceedings to the county court. On 27 th January, the father issued an application for contact. The matter then came before District Judge Stewart on 13 th March 2012 who made an interim order by consent setting out child arrangements, including staying contact on alternate weekends and during the holiday. The Family Law Act application was compromised on the basis of undertakings given by the father.
Subsequently, however, the father raised allegations against the maternal grandfather. He asserted that during a family weekend in June 2007, at which the mother, father, grandfather and other members of the mother's family were present, there was a conversation during dinner at which the mother and her sister related an incident in their childhood when the grandfather had behaved in a sexually inappropriate way towards them in the bath. The mother and grandfather strongly denied that any such incident, or conversation, had taken place. A few weeks later, in June 2012, the father alleged that I had told him that the grandfather had exposed himself to her. The father telephoned the mother and reported what he said I had told him. The mother subsequently spoke to I, who told her that her father had kept asking her about grandpa's penis so she had just said that she had seen it once when he was going to the toilet. On 14 th June, the mother applied to suspend contact. That application was granted on an ex-parte basis by the district judge. On the following day, the father applied to discharge that ex-parte order and filed an application for a prohibited steps order preventing unsupervised contact between the children and their maternal grandfather. At a subsequent case management hearing, the application was set down for a fact-finding hearing in September 2012 in respect of the mother's allegations against the father of domestic violence and the father's allegations against the maternal grandfather of sexual misconduct and abuse. The substantial number of allegations set out in the original schedule of findings sought by the mother was reduced at the court's direction.
At the fact-finding hearing in September 2012, the father substantially denied all the allegations of domestic violence. He reiterated his allegations against the grandfather and gave further details of the conversation which he said had taken place with I in June 2012. He also alleged that the grandfather had admitted the allegation that he showed his penis to I. He further gave evidence that during the conversation in June 2007 (referred to in paragraph 7 above) there had been discussion about the grandfather's heavy use of pornography and the fact that the mother and her sister as children had chanced upon the pornographic material stored in the garage. In cross-examination, however, he accepted that in his statement of arrangements filed with his divorce petition he had not referred to the allegation which he said the mother had made about her father behaving in an inappropriate way towards her when she was a child. Both the mother and the grandfather gave evidence in which they strongly denied these allegations.
The recorder found the mother to be a credible, measured and reliable witness who in her evidence had recalled events which she had experienced. She rejected the father's assertion that the mother had set out to lie, fabricate, embellish or sensationalise her evidence. The recorder described the father as being assertive and controlled in his evidence, intent on highlighting what he saw as inconsistencies in the mother's evidence. The recorder did not find him to be a credible witness and concluded that, where his account differed from the mother's, she unhesitatingly preferred the latter. The recorder further found the maternal grandfather to be an impressive and dignified witness who came across as a kind, caring and loving grandfather.
The recorder found all the mother's allegations of domestic violence proved. As for the father's allegations against the grandfather, the recorder completely rejected his evidence concerning the mother's alleged assertion that the grandfather had behaved in a sexually inappropriate way towards her as a child. The recorder concluded that the conversation alleged in 2007 had never happened and that the father had simply invented this allegation. The recorder was satisfied on a balance of probabilities that I had said something about having seen her grandfather's penis to her father. She was not satisfied, however, that it was a spontaneous comment and accepted the mother's account of her conversation with I and concluded that the father had persistently asked I whether she had seen her grandfather's penis. She concluded the father had made these allegations maliciously, knowing that they had absolutely no foundation in truth.
In short, the recorder found that the father had (1) committed serious acts of domestic violence upon the mother, some in the presence of the children; (2) fabricated allegations against the grandfather of sexually inappropriate behaviour; (3) attempted to coach I into making allegations against her grandfather and (4) lied concerning all these matters in court. The judgment has never been the subject of any appeal, but the father resolutely refuses to accept the findings. This court of course proceeds on the basis that those findings are true.
Following the fact-finding judgment, a risk assessment of the father was carried out by Dr Chris Newman, a psychologist specialising in domestic violence assessment and treatment. In the interim, the mother was directed to make the children available for indirect contact via Skype or telephone three days a...
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